1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JASON ROSE, Case No. EDCV 21-0816-PA (RAO)

12 Petitioner, ORDER DISMISSING PETITION 13 v. FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION 14 UNITED STATES OF AMERICA, et AND DENYING CERTIFICATE OF al., APPEALABILITY 15 Respondents. 16

17 On May 4, 2021, Petitioner Jason Rose, who at the time was incarcerated in 18 United States Penitentiary Victorville, California, filed a Petition for Writ of Habeas 19 Corpus by a Person in Federal Custody pursuant to

(“Petition”), 20 seeking relief from his 2005 sentence in the United States District Court for the 21 Southern District of New York. (Petition at 1.) Respondent moves to dismiss or, 22 alternatively, transfer the Petition on the ground that it raises claims that must be 23 brought in a

motion in the district court in the Southern District of 24 New York. (Dkt. No. 14 (hereinafter, “MTD”).) 25 For the reasons that follow, the Court finds that it lacks jurisdiction over the 26 instant Petition and, therefore, it is recommended that the MTD be granted and this 27 action dismissed without prejudice. 28 1 I. PROCEDURAL BACKGROUND 2 Petitioner’s incarceration is the result of a 2005 conviction in the United States 3 District Court for the Southern District of New York following a jury trial for 4 conspiring to distribute 50 grams or more of crack cocaine, in violation of 18 U.S.C. 5 § 846, and carrying a firearm in furtherance of a drug trafficking scheme, in violation 6 of

(c). (MTD at 7); see also United States v. Rodriguez, et al., No. 7 03-cr-01501-VEC (S.D.N.Y.) (hereinafter, “Rose”), Dkt. No. 242.1 The District 8 Court sentenced Petitioner to a term of 300 months in prison, which comprised the 9 then-mandatory minimum of 20 years for the drug trafficking offense2 plus a 10 consecutive term of 60 months for the firearm offense. MTD at 7; Rose, Dkt. No. 11 242. 12 Petitioner appealed to the Second Circuit Court of Appeals, which affirmed 13 the judgment, and thereafter filed a petition for writ of certiorari in the United States 14 Supreme Court, which was denied. See Rose, Dkt. No. 353 at 2. 15 On August 20, 2013, Petitioner filed a motion pursuant to

in 16 the Southern District of New York to vacate his sentence, raising claims under 17 Apprendi v. New Jersey,

,

,

(2000), 18 and Alleyne v. United States,

,

,

(2013). 19 See Rose, Dkt. No. 353. The district court denied the motion and subsequently denied 20 a certificate of appealability.

Dkt. Nos. 354, 357. 21 22 1 The Court takes judicial notice of the docket of the Southern District of New York 23 in the case involving Petitioner cited herein. See Fed. R. Evid. 201 (providing that a 24 court may take judicial notice of adjudicative facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Harris 25 v. Cty. of Orange,

(9th Cir. 2012) (noting that a court may 26 take judicial notice of federal and state court records). 2 The statutory mandatory minimum for the drug trafficking offense would have been 27 ten years but the government filed a prior drug felony information against Petitioner 28 that increased the mandatory minimum to 20 years. See Rose, Dkt. No. 354 at 1. 1 On March 27, 2019, Petitioner sent a letter to the district court asking about 2 “the . . . application of the Fair Sentencing Act of 2010 to [his] case[.]”

Dkt. No. 3 387. On April 12, 2019, Petitioner, through counsel, formally moved for a sentence 4 reduction under the First Step Act of 2018.

Dkt. No. 395. In his motion, 5 Petitioner argued that under the Fair Sentencing Act of 2010, which the First Step 6 Act made retroactive to his case, he was eligible for a reduction in his sentence to 7 time served because the 2010 Act provided for a lower sentencing range for offenses 8 involving less than 280 grams, rather than less than 50 grams, of crack cocaine.

9 at 2-4. 10 Notably, Petitioner also contended in his motion that “under the First Step Act 11 of 2018, [his] prior drug felony would not subject him to enhanced penalties and, if 12 sentenced today, he would be subject to only a mandatory 5-year minimum sentence 13 on Count One” because his prior drug felony would no longer be considered a 14 “serious drug felony.” Id. at 5. Nevertheless, Petitioner stated that he was “not 15 asking the Court to apply the newly amended First Step Act definition of serious drug 16 offense with respect to the prior felony information filed in this case.” Id. 17 On May 13, 2019, the district court held a hearing on the resentencing motion 18 and, on September 24, 2019, the court reduced Petitioner’s sentence to 19 years in 19 prison plus ten years of supervised release. Id., Dkt. No. 428. Petitioner filed an 20 appeal from the amended judgment and sentence, which was denied by the Second 21 Circuit Court of Appeals on May 4, 2021. Id., Dkt. No. 451. While his appeal was 22 pending, on July 9, 2020, Petitioner submitted a letter to the district court contending 23 that he should have received credits against his sentence based on time spent 24 previously in state custody. Id., Dkt. No. 444. The district court construed 25 Petitioner’s application as a new § 2255 motion, because it challenged a new 26 sentence, and denied the motion on its merits on April 15, 2021. Id., Dkt. Nos. 443, 27 444, 450. 28 1 As noted above, Petitioner filed the instant Petition on May 4, 2021. Petitioner 2 challenges his sentence on the ground that the enhancement that was imposed based 3 on his commission of a prior felony was “rendered infirm” by the passage of the First 4 Step Act in 2018, which changed the definition of a serious drug offense for purposes 5 of enhancing a sentence. Petition at 1; Dkt. No. 8 at 1. 6 On September 17, 2021, Respondent filed its motion to dismiss. Dkt. No. 14. 7 On October 19, 2021, Petitioner filed an opposition to the MTD. Dkt. No. 19. 8 After Petitioner filed the instant Petition in this Court, on July 20, 2021, he 9 filed a motion for compassionate release in the Southern District of New York, in 10 which he argued both that the prior drug felony used to enhance his 2005 sentence 11 was not a serious felony under the First Step Act and that he should be released 12 because he had contracted the COVID-19 virus in prison. Rose, Dkt. No. 453. On 13 September 24, 2021, the district court ordered the government to respond to 14 Petitioner’s motion by October 22, 2021 and Petitioner to file a reply to the 15 government’s response no later than November 12, 2021. Id., Dkt. No. 459. 16 II. STANDARD OF REVIEW 17 Petitioner seeks relief by way of a habeas petition under

. A 18 Court may apply the Rules Governing Section 2254 Cases in the United States 19 District Courts to other types of habeas corpus actions, including actions under 28

. See Rule 1(b) of the Rules Governing Section 2254 Cases; Lane v. 21 Feather,

(9th Cir. 2014); Philip v. Tews, No. CV 16-01987 CJC 22 (AFM),

, at *2 n.2 (C.D. Cal. Apr. 29, 2016). 23 Under Rule 4 of the Rules Governing Section 2254 Cases, the Court may 24 dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits 25 that the petitioner is not entitled to relief in the district court.” 26 III. DISCUSSION 27 A. The Requested Relief is Properly Sought in a Section 2255 Motion 28 Section 2255 provides: 1 A prisoner in custody under sentence of a court established 2 by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of 3 the Constitution or laws of the United States, or that the 4 court was without jurisdiction to impose such sentence, or 5 that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may 6 move the court which imposed the sentence to vacate, set 7 aside or correct the sentence. 8

(a). 9 “The general rule is that a motion under

is the exclusive 10 means by which a federal prisoner may test the legality of his detention . . . .” 11 Stephens v. Herrera,

(9th Cir. 2006). That is, as a general matter, 12 “motions to contest the legality of a sentence must be filed under § 2255 in the 13 sentencing court, while petitions that challenge the manner, location, or conditions 14 of a sentence’s execution must be brought pursuant to § 2241 in the custodial court.” 15 Hernandez v. Campbell,

(9th Cir. 2000) (per curiam); see 28

(d), 2255(a). 17 Because Petitioner is a federal prisoner and his Petition squarely contests the 18 legality of his sentence rather than the manner, location, or conditions of its 19 execution, his request for relief should be asserted under section 2255 in the Southern 20 District of New York, the District Court that sentenced him. See

(a); 21 Hernandez,

. 22 B. Petitioner Does Not Qualify for Section 2255’s Escape Hatch 23 While a section 2255 motion is “the exclusive means by which a federal 24 prisoner may test the legality of his detention,” “the one exception to the general rule 25 is what [is] called the ‘escape hatch’ of § 2255.” Stephens,

. “The 26 escape hatch permits a federal prisoner to file a habeas corpus petition pursuant to 27 § 2241 to contest the legality of a sentence where his remedy under § 2255 is 28 1 inadequate or ineffective to test the legality of his detention.” Id. (quoting 2 Hernandez,

) (internal quotation marks omitted).3 3 In the Ninth Circuit, “a motion meets the escape hatch criteria of § 2255 when 4 a petitioner (1) makes a claim of actual innocence, and (2) has not had an 5 unobstructed procedural shot at presenting that claim.” Harrison v. Ollison,

(9th Cir. 2008) (quoting Stephens,

) (internal quotation 7 marks omitted); see Muth v. Fondren,

(9th Cir. 2012). 8 Respondent argues that Petitioner cannot claim actual innocence because he is 9 not claiming that he is “factually innocent” of the crimes he committed and his 10 argument that his sentence was wrongly enhanced “is a ‘purely legal argument’ and 11 thus ‘not cognizable as a claim of actual innocence under the escape hatch.”” MTD 12 at 10 (quoting Marrero v. Ives,

(9th Cir. 2012)). The Ninth 13 Circuit Court of Appeals has recently recognized, however, that where a petitioner 14 can show that a prior conviction was not a “predicate conviction for career offender 15 status . . . the factual predicate for his mandatory sentencing enhancement did not 16 exist. That is, he is actually innocent of the enhancement.” Allen v. Ives,

1184, 1189 (9th Cir. 2020). Respondent does not address the impact, if any, of Allen 18 on Petitioner’s claims. 19 Nevertheless, even assuming that Petitioner could establish an actual 20 innocence claim, he cannot meet the second part of the escape hatch requirement, 21 i.e., that he has not had an unobstructed procedural shot at presenting that claim. In 22 fact, as set forth above, Petitioner’s counsel noted in the April 2019 resentencing 23 motion the very same argument that Petitioner seeks to raise in this Court, namely,

24 3 The escape hatch provision is found in

(e), which states: 25 An application for a writ of habeas corpus [on] behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it 26 appears that the applicant has failed to apply for relief, by motion, to the court which 27 sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 28 1 that “under the First Step Act of 2018, [his] prior drug felony would not subject him 2 to enhanced penalties and, if sentenced today, he would be subject to only a 3 mandatory 5-year minimum sentence on Count One” because his prior drug felony 4 would no longer be considered a “serious drug felony.” Rose, Dkt. No. 395 at 5. 5 Moreover, instead of dismissing the motion for resentencing, the district court heard 6 argument on the motion and then granted a reduction in Petitioner’s sentence.

7 Dkt. No. 428. 8 Furthermore, Petitioner has raised the argument that his prior drug felony is no 9 longer a serious drug felony under the First Step Act in a new motion before the 10 district court in the Southern District of New York and that court has set a briefing 11 schedule on his motion.

Dkt. Nos. 453, 459. Because it is evident that Petitioner 12 has had, and continues to have, an unobstructed procedural shot in the sentencing 13 court at raising the claim he presents in the instant Petition, he cannot avail himself 14 of the § 2255 escape hatch. 15 C. Dismissal Rather than Transfer of This Action Is Appropriate 16 Because the Court has determined that Petitioner’s requested relief should be 17 brought in a section 2255 proceeding in the Southern District of New York, the Court 18 must determine whether to transfer this action to that District or to simply dismiss it. 19 See

(stating, in relevant part, that “[w]henever a civil action is filed 20 in a court . . . and that court finds that there is a want of jurisdiction, the court shall, 21 if it is in the interest of justice, transfer such action . . . to any other such court in 22 which the action . . . could have been brought at the time it was filed[.]”). 23 In this case, because Petitioner is already pursuing the same relief presented 24 here in proceedings in the Southern District of New York, transfer of this action is 25 not warranted, and dismissal is appropriate. 26 Further, the Court finds that Petitioner has not made a substantial showing of 27 the denial of a constitutional right or that the court erred in its procedural ruling and, 28 therefore, a certificate of appealability will not issue in this action. See 28 U.S.C. 1 | § 2253(c)(1)(B); Fed. R. App. P. 22(b); Miller-El v. Cockrell,

, 336 2 || (2003); see also Alaimalo, 645 F.3d at 1047 (“Where a petition purportedly brought 3 || under § 2241 is merely a ‘disguised’ § 2255 motion, the petitioner cannot appeal the 4 || dental of that petition absent a COA[.]’’). IV. ORDER 6 Based on the foregoing, IT IS ORDERED THAT the Petition is DISMISSED 7 || without prejudice for lack of jurisdiction. 8 || DATED: November 1, 2021 : C Ll □ 9 PERCY ANDERSON 10 UNITED STATES DISTRICT JUDGE 11 |) Presented by: 12 . 4 Rapelia □□□ 14 || ROZELLA A. OLIVER Is UNITED STATES MAGISTRATE JUDGE

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