(HC) Gray v. Brewer

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA SAMUEL GRAY, Case No. 2:22-cv-01659-JDP (HC) 11 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS 12 v. ECF No. 9 DAVID BREWER, 14 Respondent.

16 Petitioner Samuel Gray, a federal prisoner proceeding without counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2244 challenging his lifetime conviction. ECF No. 1.

18 His petition raises two claims: (1) that his conviction for Hobbs Act robbery is not a conviction for a violent felony within the meaning of 18 U.S.C. § 3559(c); and (2) that his prior convictions for robbery under Georgia law are invalid because the state statute is “indivisible.” ECF No. 1 at 3-6. Respondent has filed a motion to dismiss arguing that these claims cannot proceed in a section 2241 action and this case should be dismissed. I will grant it.1 23 Rule 4 of the Rules Governing Section 2254 Cases provides that a district court may dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . .” This rule also permits a respondent to file a motion to dismiss. White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989).

28 1 The parties have consented to magistrate judge jurisdiction. ECF No. 7.

1 Respondent has presented evidence establishing that petitioner presented the claims at | issue in this case to the federal district court for the Northern District of Georgia. ECF No. 9-1 at | 68-81. That court rejected petitioner’s claims, id., and the Eleventh Circuit did the same on | appeal, see Gray v. United States, 622 F. App’x 788 (11th Cir. 2015). Petitioner raised similar | claims again in 2021 under both the First Step Act and 18 U.S.C. § 3582, and the Northern | District of Georgia rejected those claims as well and held that the Hobbs Act claims should be | brought, if at all, in a successive § 2255 petition. ECF No. 9-1 at 91-101. In his opposition to | respondent’s motion, petitioner does not dispute that his claims were previously addressed in the | Northern District of Georgia. Rather, he claims that he fits the section 2241 “escape hatch” | because he is “actually innocent of a crime that would qualify him for Three Strike offender 11 status....” ECF No. 11 at 3.

12 The “escape hatch” applies where a prisoner “(1) makes a claim of actual innocence, and | (2) has not had an unobstructed procedural shot at presenting that claim.” Marrero v. Ives, 682 | F.3d 1190, 1192 (9th Cir. 2012). As the Ninth Circuit explained in /ves, however, a claim of | actual innocence for the purposes of the “escape hatch” means “factual innocence, not mere legal | msufficiency.” Jd. at 1193 (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). And | factual innocence obtains only if the petitioner can show that “it is more likely than not that no || reasonable juror would have convicted him.” Bousley, 523 U.S. at 623. Petitioner’s claims do | not implicate factual innocence, and, as such, he does not qualify.

20 It is, therefore, ORDERED that respondent’s motion to dismiss, ECF No. 9, is | GRANTED and the petition, ECF No. 1, is DISMISSED.

73 IT IS SO ORDERED.

24 ( q Sty — Dated: _ April 7, 2023 q——— 25 JEREMY D,. PETERSON 26 UNITED STATES MAGISTRATE JUDGE