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Defrancia v. United States

United States District Court, D. Hawaii

March 22, 2017

JASON K. DEFRANCIA Defendant/Petitioner,
v.
UNITED STATES OF AMERICA, Plaintiff/Respondent. Civ. No. 16-00374 JMS-RLP

          ORDER DISMISSING SECTION 2255 PETITION

          J. Michael Seabright Chief United States District Judge

         I. INTRODUCTION

         Defendant/Petitioner Jason K. Defrancia (“Defrancia”) filed a July 1, 2016 Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (the “Petition”). ECF No. 58.[1] The court previously determined that the Petition was time-barred under § 2255(f), construed the Petition as a § 2241 Petition based on Defrancia's claim of actual innocence, and transferred the action to the Central District of California, where Defrancia resided. See Defrancia v. United States, 2016 WL 5868068 (D. Haw. Oct. 6, 2016); ECF No. 67. The district court in the Central District of California, in turn, transferred the action back to this court. ECF No. 69.

         The sole remaining issue before the court is whether Defrancia has made the necessary showing of “actual innocence” under § 2255(e)'s escape hatch to avoid the statute of limitations bar (and thus to proceed under § 2241 instead of § 2255). The court concludes that Defrancia has failed to do so, and thus dismisses the Petition.

         II. BACKGROUND

         On September 11, 2012, Defrancia pled guilty to a single count Indictment charging him with knowingly and intentionally possessing with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). ECF No. 30. On February 22, 2013, the court sentenced Defrancia to 120-months incarceration, to be followed by five years of supervised release.[2] ECF No. 46. Judgment was entered on February 27, 2013. ECF No. 47. Defrancia filed a Notice of Appeal on March 8, 2013, and the Ninth Circuit granted Defrancia's Motion to Dismiss Appeal and issued its mandate by Order dated April 17, 2013. ECF Nos. 50, 57.[3] Defrancia, however, did not file the Petition until July 1, 2016 -- over three years after § 2255(f)'s one-year statute of limitations expired.[4] ECF No. 58-1.

         In apparent recognition of the potential time bar, Defrancia argues a claim of actual innocence. Petition at 4; Pet'r's Supp. Mem. at 3-4, ECF No. 59. As a result, the court directed the United States to limit its response to address whether Defrancia made the necessary showing of actual innocence. ECF No. 61. The United States filed its Response on July 14, 2016, and Defrancia filed a Reply on September 20, 2016. ECF Nos. 62, 66. And after review, the court determined that the Petition was time-barred under § 2255(f), construed Defrancia's “actual innocence” claim as one brought under § 2241, and transferred the Petition to the Central District of California, where he resided. Defrancia, 2016 WL 5868068, at *1.

         But the Central District of California believed the Petition was improperly transferred (a decision that this court does not address), and thus sent the action back to the District of Hawaii. ECF No. 69. This court then permitted the parties to file supplemental briefing on the actual innocence question. ECF No. 71. On January 30, 2017, Defrancia filed a “Motion to Oppose Further Briefing Pursuant to Federal Rule of Appellate Procedure 27(a)(1)” and on February 6, 2017, the United States filed a supplemental response. ECF Nos. 72, 73.

         III. DISCUSSION

         “The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention, and that restrictions on the availability of a § 2255 motion cannot be avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citation omitted). But under the “escape hatch” of § 2255(e), a federal prisoner may file a § 2241 petition if, and only if, the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention.” Id. (internal quotation marks omitted). A prisoner may file a § 2241 petition under the escape hatch when the prisoner “(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” Id. at 898 (internal quotation marks omitted).

         “In this circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614[, 623], 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).” Stephens, 464 F.3d at 898. And actual innocence “means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. Thus, “[a] petitioner is actually innocent when he was convicted for conduct not prohibited by law.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (citing Reyes Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001)).

         A. Defrancia Had an Unobstructed Procedural Shot at Presenting His Claims

         To support his claim of actual innocence, Defrancia makes several claims. In summary, he argues that:

• The government used a confidential informant (CI) to target him, the government failed to disclose that the CI was in the United States illegally, and his conviction was based “on the testimony of [the CI], without any ...

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