United States District Court, D. Arizona
Honorable Cindy K. Jorgenson Judge.
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.
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.
Objections to R&R
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.
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.)
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.
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.
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).
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.).
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