United States District Court, D. Hawaii
JASON K. DEFRANCIA Defendant/Petitioner,
UNITED STATES OF AMERICA, Plaintiff/Respondent. Civ. No. 16-00374 JMS-RLP
ORDER DISMISSING SECTION 2255 PETITION
Michael Seabright Chief United States District Judge.
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. 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.
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.
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. 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,
Defrancia, however, did not file the Petition until July 1,
2016 -- over three years after § 2255(f)'s one-year
statute of limitations expired. ECF No. 58-1.
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.
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.
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).
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)).
Defrancia Had an Unobstructed Procedural Shot at Presenting
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 ...