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United States v. Berhane

United States District Court, D. Hawaii

July 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
AMAN BERHANE, Defendant.

          ORDER REFERRING TO THE NINTH CIRCUIT DEFENDANT AMAN BERHANE'S “PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241, ” WHICH THE COURT DEEMS TO BE A MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; ORDER REFUNDING FILING FEE

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         On March 13, 2018, Defendant Aman Berhane filed a “Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241.” Berhane argues that, pursuant to Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), a prior conviction sentencing enhancement he received is now improper. Berhane seeks to have his sentence vacated and to be resentenced. See Civ. No. 18-00093, ECF No. 1, PageID # 8; and ECF No. 2, PageID # 37. Because this motion is more appropriately treated as one under 28 U.S.C. § 2255, the court deems it to be a § 2255 motion and refers it to the Ninth Circuit Court of Appeals for a determination as to whether to certify it as a second or successive motion.

         Because the court deems the motion to one under 28 U.S.C. § 2255, the court orders the Clerk of Court to return the $5.00 filing fee that Berhane submitted. See ECF No. 5.

         II. BACKGROUND FACTS.

         On April 3, 2013, Berhane was indicted for drug and firearm crimes. See Indictment, ECF No. 9.[1]

         Berhane pled guilty and was sentenced to concurrent 240-month terms of imprisonment for each of the drug crimes and a 120-month term of imprisonment for being a felon in possession of a firearm. Judgment was entered on May 29, 2014. See ECF Nos. 22, 23, 26, 47, and 48.

         On November 27, 2015, Berhane filed a § 2255 motion. ECF No. 66. On December 29, 2015, the court dismissed that motion as untimely. See ECF No. 71.

         The Supreme Court decided Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016), in 2013 and 2016, respectively.

         On March 13, 2018, Berhane filed the present petition (it appears to have been placed in the prison mail system on May 8, 2018), arguing that Descamps and Mathis render a sentencing enhancement he received inapplicable.

         III. APPLICABLE LAW.

         Berhane says he is bringing this motion under 28 U.S.C. § 2241(a), which allows writs of habeas corpus to be granted by this court. However, 28 U.S.C. § 2255 is generally “the exclusive procedural mechanism by which a federal prisoner may test the legality of detention.” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011) (quoting Harrison v. Ollison, 519 F.3d 952, 955 (9th Cir. 2008) (quoting Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000))).

         A federal prisoner may seek relief under § 2241 only when the remedy provided by § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). This is referred to as the “savings clause” or “escape hatch” and is satisfied only when a petitioner “(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.” Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (quotation marks and citation omitted). A motion under 28 U.S.C. § 2241 must be brought in “the custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (“a habeas petition filed pursuant to § 2241 must be heard in the custodial court . . ., even if the § 2241 petition contests the legality of a sentence by falling under the savings clause”).

         The Ninth Circuit has characterized the “escape hatch” as “narrow, ” noting that “§ 2255's remedy is not ‘inadequate or ineffective' merely because § 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition.” Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). For example, in Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000), the Ninth Circuit stated that “§ 2241 is not available under the inadequate-or-ineffective-remedy escape hatch of § 2255 merely because the court of appeals refuses to certify a second or successive motion under the gatekeeping provisions of § 2255.” Similarly, the expiration of the one-year statute of limitations with respect to motions under § 2255 does not make § 2255 an inadequate or ineffective remedy. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Reynosa v. Hood, 25 Fed.Appx. 647 (9th Cir. 2002) (“Reynosa's inability to bring a motion under § 2255 because of the statute of limitations[] does ...


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