Pait v. Gutierrez

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 William Lee Pait, Jr., No. CV-22-00494-TUC-JAS (MSA) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 Mark Gutierrez, 13 Respondent. [14] 15 Pending before the Court is Petitioner William Pait, Jr.’s petition for a writ of habeas 16 corpus under 28 U.S.C. § 2241 . The Court finds that it lacks jurisdiction over the petition 17 and that this matter should be dismissed. 18 I. Background 19 Petitioner is serving a 50-year term of imprisonment following a conviction in the 20 Eastern District of North Carolina for manufacture or production of child pornography. 21 (Doc. 54, United States v. Pait, No. 12-cr-00187 (E.D.N.C. Sept. 3, 2013).) His sentence 22 was enhanced based on one or more prior convictions for a child sex offense. See 18 U.S.C. 23 § 2251(e). Petitioner says that his prior convictions were under N.C. Gen. Stat. § 14-202.1 24 (taking indecent liberties with children) and § 14-202.3 (solicitation of a child by computer 25 or other electronic devices to commit an unlawful sex act), but there are no state conviction 26 documents in the record, and it is not clear which conviction served as the predicate for his 27 federal sentencing enhancement. 28 Petitioner’s direct appeal was unsuccessful. United States v. Pait, 582 F. App’x 249 1 (4th Cir. 2014). He did not file a motion to vacate under 28 U.S.C. § 2255.1 At some point, 2 he was transferred to a prison within the District of Arizona, where he filed this action 3 under 28 U.S.C. § 2241 . (Doc. 1.) The petition has been fully briefed. (Docs. 18, 20, 21.) 4 II. Discussion 5 A. The Court lacks jurisdiction. 6 Petitioner claims that neither of his state-court convictions is a proper predicate for 7 his federal sentencing enhancement, and that he is therefore innocent of the enhancement. 8 Ordinarily, this type of challenge must be presented to the sentencing court in a motion 9 under 28 U.S.C. § 2255 . Pinson v. Carvajal, 69 F.4th 1059 , 1066 (9th Cir. 2023) (quoting 10 Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam)). “Under the 11 ‘escape hatch’ provision of § 2255(e), however, a federal prisoner may file a § 2241 12 petition, but only if the § 2255 remedy is ‘inadequate or ineffective to test the legality of 13 his detention.’” Pavulak v. Blanckensee, 14 F.4th 895 , 896–97 (9th Cir. 2021) (per curiam) 14 (quoting 28 U.S.C. § 2255 (e)). “[T]he escape hatch is available when the prisoner ‘(1) 15 makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at 16 presenting that claim.’” Shepherd v. Unknown Party, 5 F.4th 1075 , 1076 (9th Cir. 2021) 17 (per curiam) (quoting Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012)). 18 Petitioner has not filed a first § 2255 motion, so he cannot show that he has not had 19 an unobstructed procedural shot at presenting his claim. He argues that his claim would 20 have been rejected under the incorrect precedents of the United States Court of Appeals for 21 the Fourth Circuit, and that his claim is viable now only because the United States Supreme 22 Court clarified the law in Mathis v. United States, 579 U.S. 500 (2016), and Descamps v. 23 United States, 570 U.S. 254 (2013). At one time, those circumstances would have 24 supported a finding that Petitioner lacked an opportunity to present his claim. See Allen v. 25 Ives, 950 F.3d 1184 , 1190 (9th Cir. 2020) (holding that the petitioner “did not have an [26] 1 In his petition, Petitioner asserts under penalty of perjury that he filed a § 2255 27 motion in the sentencing court. (Doc. 1-1 at 5.) However, the sentencing court’s docket does not reflect that he ever filed a § 2255 motion, and Petitioner has since explained that 28 he was simply confused about the difference between his direct appeal and a § 2255 proceeding. As such, there is no dispute that Petitioner has not filed a § 2255 motion. 1 unobstructed procedural shot at presenting his claim of actual innocence because it was 2 foreclosed by existing [circuit] precedent at the time of his direct appeal and § 2255 3 motion”). However, the Supreme Court has since explained that unfavorable or incorrect 4 circuit precedent does not make the § 2255 remedy inadequate or ineffective. Jones v. 5 Hendrix, 599 U.S. 465 , 480–81 (2023). 6 Petitioner has not satisfied the escape hatch. Therefore, the Court lacks jurisdiction 7 over the § 2241 petition. See Hernandez, 204 F.3d at 864–65 (explaining that satisfaction 8 of the escape hatch is determinative of jurisdiction). 9 B. Transfer would not be in the interest of justice. 10 The § 2241 petition must be construed as a § 2255 motion, and only the sentencing 11 court has jurisdiction to hear a § 2255 motion. Hernandez, 204 F.3d at 864 . Therefore, the 12 issue is whether the petition should be transferred to the United States District Court for 13 the Eastern District of North Carolina. The Court finds that transfer is not warranted. 14 When a “court finds that there is a want of jurisdiction, the court shall, if it is in the 15 interest of justice, transfer such action or appeal to any other . . . court . . . in which the 16 action or appeal could have been brought at the time it was filed or noticed.” 28 U.S.C. 17 § 1631; see Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010) (stating that transfer 18 is proper under § 1631 if “(1) the transferee court would have been able to exercise its 19 jurisdiction on the date the action was misfiled; (2) the transferor court lacks jurisdiction; 20 and (3) the transfer serves the interest of justice” (citation omitted)). “[T]ransfer will 21 generally be in the interest of justice, unless it is apparent that the matter to be transferred 22 is frivolous or was filed in bad faith.” Amity Rubberized Pen Co. v. Mkt. Quest Grp., 793 23 F.3d 991 , 996 (9th Cir. 2015). 24 In this case, a limited inquiry reveals that Petitioner’s claim is frivolous because it 25 is untimely without justification. His § 2255 motion is subject to a one-year statute of 26 limitation. 28 U.S.C. § 2255 (f). The limitation period runs from the latest of: (1) the date on which the judgment of conviction becomes final; [27] (2) the date on which the impediment to making a motion created by 28 governmental action in violation of the Constitution or laws of the United 1 States is removed, if the movant was prevented from making a motion by such governmental action; [2] (3) the date on which the right asserted was initially recognized by the 3 Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or [4] (4) the date on which the facts supporting the claim or claims presented could 5 have been discovered through the exercise of due diligence. [6] Id. 7 First, Petitioner’s judgment became final nearly ten years ago, so if § 2255(f)(1) 8 applies, then the limitation period expired nearly nine years ago. Second, Petitioner does 9 not allege that the Government obstructed him from filing a § 2255 motion, so § 2255(f)(2) 10 does not apply. Third, Petitioner’s claim does not rely on any newly recognized right. His 11 claim is based on Mathis v. United States, 579 U.S. 500 (2016), and Descamps v. United 12 States, 570 U.S. 254 (2013). Those cases simply clarified existing rules; they did not create 13 any new right. Arazola-Galea v. United States, 876 F.3d 1257, 1259 (9th Cir. 2017); Ezell 14 v. United States, 778 F.3d 762, 766 (9th Cir. 2015). So § 2255(f)(3) does not apply either.2 15 Finally, Petitioner has not identified any new “facts” that could support a start date 16 under § 2255(f)(4). Importantly, a judicial decision constitutes a new “fact” only if it occurs 17 in the petitioner’s case and affects his legal status (e.g., the decision vacates one of his 18 predicate convictions). Shannon v. Newland, 410 F.3d 1083 , 1088–89 (9th Cir. 2005); 19 Whiteside v. United States, 775 F.3d 180 , 183–84 (4th Cir. 2014) (en banc). A new decision 20 that does not affect the petitioner’s legal status does not constitute a new “fact” under 21 § 2255(f)(4), even if the decision creates a legal principle that is helpful to the petitioner’s 22 claim. Shannon, 410 F.3d at 1089 ; Whiteside, 775 F.3d at 184 . Thus, even if Petitioner 23 discovered Mathis and Descamps only recently, that is not a “fact” that would warrant a 24 later start date under § 2255(f)(4). 25 Petitioner does not argue that his claim is timely under § 2255(f). Instead, he argues 26 that his untimeliness would be excused because he makes a claim of actual innocence. The 27 Supreme Court has held that “a credible showing of actual innocence may allow a prisoner 28 2 If Mathis and Descamps did create a new right, the petition would still be untimely. The petition was filed more than five years after Mathis (the later case) was decided. 1 || to pursue his constitutional claims ... on the merits notwithstanding the existence of a 2|| procedural bar to relief.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). However, McQuiggin involved a petitioner who claimed he was actually innocent of his conviction. 4|| Id. at 389 . The Fourth Circuit, whose law would govern upon transfer, has refused to extend || McQuiggin to those who assert actual innocence of a sentence. United States v. Jones, 758 || F.3d 579, 586-87 (4th Cir. 2014) (“McQuiggin does not apply to habeas claims based on actual innocence of a sentence.”’). Therefore, the North Carolina district court would not 8 || excuse Petitioner’s untimeliness. 9 Petitioner’s claim is untimely without excuse. Therefore, transfer would not be in the interest of justice. See Hermosillo-Enriquez v. Sanders, 413 F. App’x 994, 996 (9th Cir. 11 || 2011) (affirming the denial of a § 1631 transfer “because the petition would be untimely’’). Il. Conclusion 13 The Court recommends that Petitioner William Pait, Jr.’s petition for a writ of || habeas corpus under 28 U.S.C. § 2241 (Doc. 1) be dismissed without prejudice for lack 15 || of jurisdiction. 16 This recommendation is not immediately appealable to the United States Court of 17 || Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections 18 || with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses || to objections. Jd. The parties may not file replies to objections absent the district court’s 20 || permission. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Clerk of 22 || Court is directed to terminate the referral of this matter. Filed objections should bear the || following case number: CV-22-00494-TUC-JAS. 24 Dated this 14th day of February, 2024. 25 \ rete Oy □ 26 United States Mast aie fade [28] _5-