Pait v. Gutierrez

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 William Lee Pait, Jr., No. CV-22-00494-TUC-JAS (MSA) 10 Petitioner, ORDER v. Mark Gutierrez, 13 Respondent.

15 Pending before the Court is Petitioner William Lee Pait, Jr.’s petition for a writ of habeas corpus under 28 U.S.C. § 2241. As will be explained in the forthcoming report and recommendation, the Court concludes that it lacks jurisdiction over the petition. It is not clear from the record, however, whether this case should be terminated or instead be transferred to the sentencing court. The purpose of this Order is to explain the Court’s views and to afford the parties an opportunity to respond.

21 * * * 22 In 2013, Petitioner pleaded guilty, in North Carolina district court, to production of child pornography. He had prior state-court convictions for child sex offenses, so he faced an enhanced sentence on the federal production charge. The North Carolina district court found that one of his prior convictions was a proper predicate for the enhancement and thus imposed an enhanced sentence. Petitioner’s direct appeal failed.

27 There is a discrepancy as to what occurred next. Petitioner asserts, under penalty of perjury, that he sought collateral relief in the sentencing court under 28 U.S.C. § 2255. The docket for Petitioner’s criminal case, however, does not reflect that he ever filed a § 2255 motion. The importance of this discrepancy will be made clear momentarily.

3 In 2022, Petitioner filed this case under 28 U.S.C. § 2241. Based on intervening statutory-interpretation caselaw, he argues that neither of his state-court convictions is a proper predicate for the enhancement and that he is therefore innocent of the enhancement.

6 While he concedes that this type of claim ordinarily must be brought in the sentencing court under § 2255, he argues that he satisfies § 2255(e)’s “escape hatch,” which means he can present his claim to the custodial court (this Court) under § 2241.

9 Petitioner is wrong that he can proceed under § 2241, and the Court will explain why in the report and recommendation. The issue now, as the Court sees it, is what the lack of jurisdiction means for Petitioner. There are two possibilities: 12 First, dismissal. Under 28 U.S.C. § 2255(h), a federal prisoner cannot file a “second or successive motion” in the sentencing court unless it is based on “newly discovered evidence” of his innocence or on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Petitioner’s claim is not based on new evidence or a new rule of constitutional law; it is based on principles of statutory interpretation. Therefore, if Petitioner has already filed a § 2255 motion in the North Carolina district court—as he says he has—then he is barred under § 2255(h) from bringing his statutory claim in a second motion. If the Arizona district court lacks jurisdiction to grant relief, and the North Carolina district court is statutorily barred from granting relief, then Petitioner has no recourse. His § 2241 petition (which is actually a disguised § 2255 motion) should be dismissed.

23 Second, transfer. If Petitioner has never filed a § 2255 motion—which is what the sentencing court’s docket indicates—then the restrictions on second or successive motions do not bar him from seeking relief in that court. And because § 2255(f)(4) runs the one- year statute of limitation from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence,” his claim might be timely. Therefore, Petitioner may be able to obtain relief on his statutory claim by filing his first § 2255 motion in the North Carolina district court.

2 Transfer, of course, raises other issues. A case may be transferred for lack of || jurisdiction if doing so would serve “the interest of justice.” 28 U.S.C. § 1631. Transfer 4|| generally is not in the interest of justice if the petitioner’s claim would be “clearly doomed” upon arrival in the transferee court. Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999).

6|| Here, it is not apparent that Petitioner’s claim would necessarily fail in the North Carolina 7\| district court. It is not clear that his claim is time barred because, as noted, the statute of || limitation accommodates the possibility that a prisoner might fail to discover his claim 9|| despite his diligence. Cf id. at 611 (concluding that transfer was unwarranted because the 10|| habeas petitions were clearly untimely).! As for the merits, because the Court lacks |} jurisdiction, its power to review the merits is “limited.” /d. Here, resolving Petitioner’s claim would require determining which of his state-court convictions served as the 13} predicate for the enhancement and then determining whether that conviction was a categorical match to the federal offense. That sort of analysis arguably exceeds the “limited 15} review” authorized by § 1631. See id. (stating that a case should not be transferred if “the limited review reveals that the case is a sure loser’).

17 kK ok 18 IT IS ORDERED that each party shall file a supplemental brief addressing whether this case should be transferred to the Eastern District of North Carolina if jurisdiction is 20|| found to be lacking. The supplemental briefs are due no later than August 25, 2023.7 21 Dated this 15th day of August, 2023.

23 Uinted Staves Klee ae 26] 1 Under the transfer statute, the North Carolina district court would be required to treat Petitioner’s case as having been filed on October 18, 2022—the date he filed in this 27|| district—rather than on the date of the transfer. 28 U.S.C. § 1631.

Petitioner’s response to this Order will not be construed as an admission that 28 jurisdiction is lacking. He will have the opportunity to challenge that legal conclusion by objecting to the report and recommendation.

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