Chandar A. Snow v. Jusino

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — ) Case No. CV 21-6253-JWH (JPR) 11 CHANDAR A. SNOW, ) ) 12 Petitioner, ) ORDER SUMMARILY DISMISSING 28 ) U.S.C. § 2241 HABEAS PETITION 13 v. ) ) 14 MS. JUSINO et al., ) ) 15 Respondents. ) — 16 — 17 On August 2, 2021, Petitioner, who is housed at the Federal 18 Correctional Institution in Victorville, filed a Petition for 19 Writ of Habeas Corpus by a Person in Federal Custody under 28 20 U.S.C. § 2241 . He was apparently convicted in the Eastern 21 District of Michigan in 1993 of conspiracy to distribute cocaine 22 base and conspiracy to kill someone during a drug crime and was 23 sentenced to life in prison. See United States v. Snow, 48 F.3d 24 198, 199 (6th Cir. 1995); (see also Pet. at 2). 25 Generally, after a conviction and sentence are final, the 26 only mechanism for a federal prisoner to seek relief from 27 judgment is through 28 U.S.C. § 2255 . See Tripati v. Henman, 843 28 F.2d 1160 , 1162 (9th Cir. 1988). Prisoners may file only one — 1 — 1]} S$ 2255 motion, and only within certain strict time limits. See 2255(f), (h). Under the “savings clause” of § 2255, however, a 3 |] prisoner may file a federal habeas petition when it “appears that the remedy by motion is inadequate or ineffective to test the 5 |] legality of his detention.” § 2255(e). To qualify under that 6 || clause, a petitioner must claim he is actually innocent and not 7 have had an “unobstructed procedural shot” at presenting the 8 || claim earlier. Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 92008). The ban on unauthorized successive § 2255 motions does 10] not by itself render § 2255 inadequate or ineffective. Stephens ll | v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006).? 12 When a federal prisoner files a § 2241 petition, a district 13 | court must answer the “threshold jurisdictional question” of 14 |} whether the petition is properly brought under § 2241 or “is, 15 |} instead, a disguised § 2255 motion.” Marrero v. Ives, 682 F.3d 16 |} 1190, 1194 (9th Cir. 2012). 17 Because Petitioner seeks “immediate release and/or time 18 |] served on both counts” of conviction (Pet., Ex. A at 2), his 19 |] Petition is a disguised § 2255 motion and must be denied unless 20 || he can meet the requirements of the savings clause. To show 21} actual innocence, a petitioner must “demonstrate that, ‘“in light 22 | of all the evidence,”’ ‘it is more likely than not that no 23 || reasonable juror would have convicted him.’” Bousley v. United 24 || States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 — 25 — 264000 ' In late 2018 Petitioner asked the Sixth Circuit for leave 27 to file a successive § 2255 motion but was denied. Order, ECF 28 sola). In re Chandar Snow, No. 18-2402 (6th Cir. Apr. 5, 1 U.S. 298, 327-28 (1995)). In determining whether a petitioner 2 had an earlier unobstructed procedural shot at raising his claim, 3 a court considers only whether he had the opportunity to raise 4 it, not whether he in fact did so or whether it was rejected. 5 See Ivy v. Pontesso, 328 F.3d 1057, 1059-60 (9th Cir. 2003). 6 The extent of Petitioner’s actual-innocence claim is as 7 follows: 8 Petitioner was charged with an inetntional [sic] 9 killing with a 12 yrs. old allegely [sic] co-conspirator. 10 While Petitioner was standing on the porch of the only 11 “key witness to the seen [sic]” when the alleged killer 12 came from in the back of the apartment with the victim, 13 he came up to Petitioner and whispered in his ear what 14 just happen Petitioner. 15 (Pet. at 4.) This clearly does not show that no reasonable juror 16 would have convicted him. 17 Nor can Petitioner demonstrate that he has not had an 18 unobstructed procedural shot at raising his claims, which seem to 19 center on alleged errors in his presentence report and the 20 sentencing court’s denial of his application to be resentenced 21 under the First Step Act. (See Pet. at 3-4.) The Sixth Circuit 22 interpreted his pro se direct appeal as attacking only his 23 conviction on the conspiracy-to-kill count, not the drug 24 conspiracy. See Snow, 48 F.3d at 199 . It did likewise when it 25 affirmed the district court’s rejection of his more recent 26 application to be resentenced (see Pet., Ex. B at 5), during 27 which he was represented by counsel (id. at 2). He seems to 28 argue that in fact both times he requested relief on both counts — 3 — 1 (see Pet. at 3) and therefore, the Court extrapolates, did not 2 || have an unobstructed shot at having his challenges to the drug 3 || conspiracy considered. 4 Even if what Petitioner claims is true, he still cannot seek 5 || relief here through the safety valve. See Moore v. Copenhaver, 6] No. 1:13-cv-01747-JLT., 2013 WL 6054431 , at *4 (E.D. Cal. Nov. 7/15, 2013) (denying § 2255 motion disguised as § 2241 petition 8 || when petitioner claimed district court in sentencing district 9 || failed to address arguments he had raised in supplemental brief); 10 Smith v. U.S. Att’y Gen., No. CV 18-174-TUC-FRZ (BGM), 2018 WL 11 |} 10847454, at *2 (D. Ariz. July 25, 2018) (rejecting argument that 12 | appellate court’s “fail[ure] to address the issue of the change 13 | in Mississippi law” or its ignorance of that change resulted in 14 |} petitioner’s not having had unobstructed procedural shot at 15 |} raising claim). After all, 16 Petitioner had an opportunity to present his claims and 17 he did so. That he was not satisfied with the way in 18 which the . . . court dealt with those issues is not a 19 question this Court need address. 20 |} Moore, 2013 WL 6054431 , at *4; see also id. at *3 (noting that 21 Ninth Circuit has held that under safety valve, petitioner “must 22 || never have had the opportunity to raise [claim] by motion” 23 || (emphasis in original) (citing Ivy, 328 F.3d at 1060 )). If those 24 | courts truly overlooked his claims, he was not without recourse: 25 || he could have petitioned for rehearing or sought a writ of 26 || certiorari in the U.S. Supreme Court. His answer was not to file 27 habeas petition in this district. 28 Petitioner thus has not shown that § 2255 is inadequate or 1 | ineffective as a means of providing him relief, and his Petition 2 || must be summarily dismissed under Local Rule 72-3.2 for lack of 3 || jurisdiction.’ 4 IT THEREFORE IS ORDERED that Petitioner’s Petition for a 5 || Writ of Habeas Corpus is summarily dismissed. 7 || DATED: October 7, 2021 JO W. HOLCOMB 8 U.S. DISTRICT JUDGE Presented by: — 9 — 10 Mutt \ J~an Rosenbluth 11 |} U.S. Magistrate Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — 25) 26 * Local Rule 72-3.2 provides that “if it plainly appears from the face of the petition and any exhibits annexed to it that 27 the petitioner is not entitled to relief, the Magistrate Judge 2g || May Prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge.”