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Sarras v. Warden

United States District Court, D. Arizona

February 27, 2018

Donatos Sarras, Petitioner,
Warden, FCC Tucson, Respondent.


          Honorable Cindy K. Jorgenson Judge.

         On February 2, 2018, Magistrate Judge Jacqueline M. Rateau issued a Report and Recommendation (“R&R”), recommending the District Court dismiss Petitioner's § 2241 Habeas Petition for lack of jurisdiction. (Doc. 23.) The Magistrate Judge informed the parties that they had fourteen days to file their objections to the R&R. (Id. at 8.) Prior to the deadline for filing, Petitioner filed a Notice of Receipt and Objection to the Report and Recommendation. (Doc. 26.) The document noted that Petitioner had objections to the R&R, and merely listed four pages of the Magistrate Judge's R&R to which he objected. (Id.) The deadline for filing objections passed, and the Court construed Petitioner's notice as a laconic objection to the R&R. (Doc. 28.) The Court dismissed the § 2241 petition for lack of jurisdiction. (Doc. 28.) However, simultaneous to the docketing of the Order, Petitioner's detailed Objection (Doc. 30) and a Motion to File Excess Pages (Doc. 31) were received by the Clerk of Court. The Court therefore vacates the February 22, 2018 Order so that it may directly address these objections. The Court has reviewed the § 2241 Petition (Doc. 1), the Government's Motion to Dismiss for Lack of Jurisdiction (Doc. 15), the responses and replies, the R&R (Doc. 23), and Petitioner's Objection (Doc. 30). The Court has considered the Magistrate Judge's legal and factual conclusions and agrees with the well-articulated reasoning and conclusions in the R&R.

         Motion for Information

         As a preliminary matter, despite warning from Magistrate Judge Rateau (Doc. 23 at 8), Petitioner has filed a Motion for Information entitled “Document for [F]iling and Inquiry.” (Doc. 27.) The motion appears to appeal this §2241 action to the Ninth Circuit Court of Appeals, and asks the Court how much the cost is for an appeal. At the moment, there is no final determination by the Court on this matter for him to appeal. The Court will deny the motion without prejudice as premature. Petitioner may choose to appeal this Order within thirty (30) days after the entry of judgment. Fed.RApp. 4(a)(1)(A). The Court directs him to the Federal Rules of Appellate Procedure Rules 3-1 through 5-2 for further procedures for appealing this Order.

         Standard of Review

         • Objections to R&R

         The standard of review applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Nonetheless, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154.

         The Magistrate Judge determined that given the facts presented, Petitioner failed to demonstrate jurisdiction by this Court under the § 2241 “escape hatch” provision. (Doc. 23 at 5-8.)

         Petitioner's objection notes that his arguments are the same as made in previous filings to the Court. (Doc. 30 at 1.) He states that “the question is whether actual innocence in combination with a deficient § 2255 form/process or faulty instruction or non-reviewable evidence” can allow relief under § 2241. (Id. at 11.) He alleges he has demonstrated actual innocence, and raises several arguments that he believes support his claim.

         First, Petitioner believes he has discredited the victim because he has shown she was unable to provide certain details of the sexual abuse. (Id. at 3.) Further, he believes he has shown innocence because his attorney failed to present expert testimony that challenged the identification of the veins on the penis in the pornographic photos as Petitioner's. (Id.) In addition, he objects to the fact that the Court of Appeals addressed only his identity and not an underlying financial motive for the victim to make the allegations against him. (Id.) Finally, he objects that the Eleventh Circuit did not properly focus on relevant evidence showing innocence-i.e., that the photos were improperly added to the camera and computer when he could not have been present. (Id. at 4-5.)

         • §2241 Petition

         In the instant case, Petitioner challenges the validity of his conviction and sentence, and the appropriate filing would be under 28 U.S.C. § 2255. “There is an exception, however, set forth in § 2255: A federal prisoner may file a habeas petition under § 2241 [in the custodial court] to challenge the legality of a sentence when the prisoner's remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention.'” Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2000). This remedy is referred to as either the “savings clause” or “escape hatch” provision. Alaimalo v. United States, 636 F.3d 1092, 1096 (9th Cir. 2011).

         This exception is limited, and a petition does not qualify under the “escape hatch” simply because a petitioner is prevented from filing successive § 2255 petitions. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 1972); Lorentson v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). Petitioner bears the burden of demonstrating the remedy is inadequate. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). In the Ninth Circuit, the filing of a § 2241 petition is permitted when “petitioner ‘(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.'” Alaimalo, 645 F.3d at 1047 (quoting Stephens, 464 F.3d at 898.).

         The R&R correctly explains that Petitioner's § 2241 Petition challenges the validity of his conviction, therefore the Court may only exercise jurisdiction if he qualifies for the “escape hatch.” (Doc. 23 at 5.) Upon de novo review, Petitioner has not demonstrated he is afforded relief under the “escape hatch.” Petitioner can prove neither that he is factually innocent of his conviction, nor that no reasonable juror could find him ...

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