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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 KYLE EASTERLY, Case No. 1:23-cv-00878-EPG-HC

11 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING 12 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 13 TRATE, TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF 14 Respondent. APPEALABILITY

15 (ECF No. 21)

16 17 Petitioner Kyle Easterly is a federal prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to

. The parties have consented to the jurisdiction of a 19 United States Magistrate Judge. (ECF Nos. 5, 15, 16.) As this Court does not have jurisdiction to 20 entertain the instant petition pursuant to the savings clause of

(e), the Court 21 grants Respondent’s motion to dismiss and dismisses the petition. 22 I. 23 BACKGROUND 24 On September 21, 2016, Petitioner was convicted in the United States District Court for 25 the Southern District of Illinois of conspiracy to manufacture methamphetamine and possession 26 of prohibited chemicals with intent to manufacture methamphetamine. (ECF No. 21 at 2.1) On 27 January 18, 2017, Petitioner was sentenced to an imprisonment term of 235 months. (Id. at 2.) 1 Petitioner is currently incarcerated at the United States Penitentiary in Atwater, 2 California. (ECF No. 1 at 1.) In the instant federal petition for writ of habeas corpus, Petitioner 3 asserts that his presentence report added a two-point offense level enhancement for being on 4 probation or parole at the time of the offense, which is incorrect. This resulted in an improper 5 sentencing guidelines range. (Id. at 3.) Petitioner requests that the Court vacate his sentence and 6 remand for resentencing based on the alleged error. (Id. at 11.) On February 9, 2024, Respondent 7 filed a motion to dismiss the petition. (ECF No. 21.) To date, no opposition or statement of non- 8 opposition has been filed, and the time for doing so has passed. 9 II. 10 DISCUSSION 11 A. Jurisdiction Under

12 A federal court may not entertain an action over which it has no jurisdiction. Hernandez 13 v. Campbell,

(9th Cir. 2000) (per curiam). Thus, a district court must address 14 the threshold question whether a petition was properly brought under § 2241 or § 2255 in order 15 to determine whether the district court has jurisdiction. Hernandez,

. A federal 16 prisoner who wishes to challenge the validity or constitutionality of his federal conviction or 17 sentence must do so by moving the court that imposed the sentence to vacate, set aside, or 18 correct the sentence under

. Alaimalo v. United States,

, 1046 19 (9th Cir. 2011). “The general rule is that a motion under

is the exclusive means 20 by which a federal prisoner may test the legality of his detention, and that restrictions on the 21 availability of a § 2255 motion cannot be avoided through a petition under

.” 22 Stephens v. Herrera,

(9th Cir. 2006) (citations omitted). 23 Nevertheless, a “savings clause” or “escape hatch” exists in § 2255(e) by which a federal 24 prisoner may seek relief under § 2241 if he can demonstrate the remedy available under § 2255 25 to be “inadequate or ineffective to test the validity of his detention.” Alaimalo,

26 (internal quotation marks omitted) (quoting

); Harrison v. Ollison,

952, 956 (9th Cir. 2008); Hernandez, 204 F.3d at 864–65. The Ninth Circuit has recognized that 1 remedy under § 2255 usually will not be deemed inadequate or ineffective merely because a 2 prior § 2255 motion was denied, or because a remedy under § 2255 is procedurally barred. Id. 3 The burden is on the petitioner to show that the remedy is inadequate or ineffective. Redfield v. 4 United States,

(9th Cir. 1963). 5 A petitioner may proceed under § 2241 pursuant to the savings clause when the petitioner 6 “(1) makes a claim of actual innocence, and (2) has not had an ‘unobstructed procedural shot’ at 7 presenting that claim.” Stephens,

(citing Ivy, 328 F.3d at 1060). With respect to 8 the first requirement, in the Ninth Circuit a claim of actual innocence for purposes of the § 2255 9 savings clause is tested by the standard articulated by the Supreme Court in Bousley v. United 10 States,

(1998). Stephens,

. In Bousley, the Supreme Court 11 explained that “[t]o establish actual innocence, petitioner must demonstrate that, in light of all 12 the evidence, it is more likely than not that no reasonable juror would have convicted him.” 523 13 U.S. at 623 (internal quotation marks and citation omitted). 14 With respect to the second requirement, “it is not enough that the petitioner is presently 15 barred from raising his claim of innocence by motion under § 2255. He must never have had the 16 opportunity to raise it by motion.” Ivy, 328 F.3d at 1060. To determine whether Petitioner never 17 had an unobstructed procedural shot to pursue his claim, the Court considers “(1) whether the 18 legal basis for petitioner’s claim ‘did not arise until after he had exhausted his direct appeal and 19 first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to petitioner’s claim 20 after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 328 F.3d at 1060–61). 21 Here, Petitioner requests the Court to vacate his sentence and remand for resentencing 22 based on an alleged error in his pre-sentence report that purportedly resulted in a higher 23 sentencing guidelines range. (ECF No. 1 at 11.) Specifically, Petitioner argues that his 24 presentence report added a two-point offense level enhancement for being on probation or parole 25 at the time of the offense, but Petitioner was not on probation or parole at the time of the offense. 26 (Id. at 3.) As noted by Respondent, “as a matter of fact in the underlying record, there was no 27 increase in criminal history score for Petitioner being on parole or probation at the time of the 1 Additionally, it does not appear that the “legal basis” for Petitioner’s sentencing error claim 2 raised in the instant petition “did not arise until after Petitioner exhausted his direct appeal and 3 first § 2255 motion,” and there is no indication that “the law changed ‘in any way relevant’ to 4 petitioner’s claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 328 5 F.3d at 1060–61). Petitioner’s claim is not based on any change in the law but rather Petitioner’s 6 belated discovery of an alleged error in his presentence report. Therefore, Petitioner does not 7 establish that he has not had an unobstructed procedural shot at presenting his claim, and the 8 Court finds that the motion to dismiss should be granted and the petition dismissed. 9 B. Certificate of Appealability 10 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 11 whether a certificate of appealability (“COA”) should issue. See Harrison, 519 F.3d at 958 12 (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 motion, the 13 petitioner cannot appeal from the denial of that petition without a COA.”). A petitioner seeking a 14 writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his 15 petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell,

, 335–36 (2003);

. To obtain a certificate of appealability under 28 U.S.C. 17 § 2253(c), a petitioner “must make a substantial showing of the denial of a constitutional right, 18 . . . includ[ing] showing that reasonable jurists could debate whether (or, for that matter, agree 19 that) the petition should have been resolved in a different manner or that the issues presented 20 were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,

, 21 483–84 (2000) (quoting Barefoot v. Estelle,

, 893 & n.4 (1983)). 22 In the present case, the Court finds that reasonable jurists would not find the Court’s 23 determination that the petition should be dismissed debatable or wrong, or that Petitioner should 24 be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 25 III. 26 ORDER 27 Based on the foregoing, the Court HEREBY ORDERS that: 1 2. The petition for writ of habeas corpus is DISMISSED; 2 3. The Clerk of Court is DIRECTED to CLOSE the case; and 3 4. The Court DECLINES to issue a certificate of appealability. 4 5 IT IS SO ORDERED. 6| Dated: _May 24, 2024 hey — 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28