Martin v. Unknown Party

          ORDER

          Honorable Jennifer Zipps United States District Judge

         Petitioner Adam E. Martin has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 challenging the sentence imposed by the United States District Court for the Western District of Texas. (Doc. 1.) At the time of filing, Petitioner was incarcerated at USP-Tucson, Arizona. (Id.) Respondent filed a Return and Answer and a Motion to Dismiss for Lack of Jurisdiction. (Doc. 15.) Martin filed a reply (Doc. 21) and an addendum to the reply. (Doc. 22.) Also pending before the Court is Petitioner's Motion for Clarification and Motion for Declaratory Judgment. (Docs. 26 & 27.) Respondent filed a Response to the Motion for Declaratory Judgment on August 30, 2018. (Doc. 30.)

         This matter was referred to Magistrate Judge Jacqueline M. Rateau for a report and recommendation. (Doc. 3.) On August 30, 2018, Judge Rateau issued her Report, recommending that the Court grant Respondent's motion to dismiss, deny Petitioner's outstanding motions as moot, and dismiss the action without prejudice. (Doc. 31.) Petitioner filed objections to the Report on September 14, 2018 (Doc. 32), and the Respondent filed a response to Petitioner's objections on September 20, 2018. (Doc. 33.) Since the filing of the Magistrate Judge's Report, Petitioner has filed a motion to expedite (Doc. 34), a second motion to expedite (Doc. 41), and a motion to add as respondent the warden of Petitioner's most recent housing assignment. (Doc. 35.) Upon independent review of the record, the Court will adopt the Report and Recommendation, as modified by this Order, dismiss the Petition for lack of jurisdiction, and dismiss the remaining motions as moot.

         I. LEGAL STANDARD

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). See also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Reyna-Tapia, 328 F.3d at 1121; Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On August 18, 2004, Martin was convicted, following a jury trial, of eight counts of bank robbery, and subsequently sentenced to eight concurrent life sentences. United States v. Martin, 431 F.3d 846, 850 (5th Cir. 2005). Petitioner was sentenced subject to a mandatory enhancement under the “Three Strikes” statute, 18 U.S.C. § 3559, which states that a person convicted of a serious violent felony “shall be sentenced to life imprisonment if . . . the person has been convicted . . . on separate prior occasions . . . of . . . 2 or more serious violent felonies.” 18 U.S.C. § 3559(c)(1)(A)(i). At the time of sentencing, Petitioner had four prior felony convictions: two federal bank robbery convictions in violation of 18 U.S.C. § 2113(a); a Texas state robbery conviction, in violation of Tex. Penal Code § 29.02; and an Arizona state Aggravated Assault conviction in violation of Ariz. Rev. Stat. §§ 13-1203, 13-1204(A)(1), 13-701, 13-801. (Doc. 30 at 2; Doc. 30-2, Exs. 2-5; Doc. 32 at 4, 5.)

         On December 2, 2005, the United States Court of Appeals for the Fifth Circuit affirmed Martin's convictions and sentences, addressing, among other things, Petitioner's argument that his mandatory life sentence, based on the three strikes law, did not violate the Eight Amendment. Martin, 431 F.3d at 850 . The Supreme Court denied a petition for a writ of certiorari. Martin v. United States, 547 U.S. 1059 (2006).

         Petitioner's first collateral attack of his conviction and sentence was made on January 31, 2006, when Petitioner filed a § 2255 motion in the sentencing court, which was denied. See Criminal Docket for No. 1:03-CR-250 Western District of Texas, docket entry #215 (Order denying relief). The Fifth Circuit denied Martin's motion for a certificate of appealability and also dismissed his appeal of the trial court's order denying relief on his section 2255 motion. See United States v. Martin, 1:06-CV-57 (W.D. Tex. May 24, 2006), certificate of appealability denied, No. 06-50962 (5th Cir. Jan. 5, 2007). Petitioner has made several additional efforts to obtain collateral relief on various grounds, all of which were unsuccessful. (See Doc. 30 and attachments thereto.)

         On July 31, 2017, Petitioner filed the pending Petition pursuant to 28 U.S.C. § 2241, asserting that his sentence was illegal and that he is factually innocent of the sentence enhancement imposed by the United States District Court for the Western District of Texas under the Three Strikes statute, 18 U.S.C. § 3559(c). He seeks an order vacating his illegal sentence and the issuance of a “certificate of innocence.” The Respondent moved to dismiss the Petition, arguing that the Petition challenges the validity of Petitioner's conviction and sentence and, therefore, must be brought as a motion pursuant to 28 U.S.C. § 2255 in the sentencing court, and not as a § 2241 habeas petition. See Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008). The Magistrate Judge agreed and recommends dismissing the Petition. (Doc. 31.)

         Petitioner filed objections to the Report and Recommendation, asserting that he is eligible for relief under 28 U.S.C. § 2241. Petitioner argues that he is factually innocent of the sentencing enhancement because he does not have two prior serious felony convictions as that term is defined by 18 U.S.C. § 3559(c). Petitioner objects to the Magistrate Judge's finding that his federal felony bank robbery convictions in the Western District of Oklahoma count as two prior serious violent felonies sufficient to support the sentencing enhancement. Petitioner argues that the convictions did not become final on separate prior occasions and thus count only as a single predicate felony for the purposes of 18 U.S.C. § 3559(c). (Doc. 32 at 4.)^[1] Petitioner further asserts that his convictions for Arizona aggravated assault and Texas robbery are divisible and therefore are “not deemed violent” for the purposes of sentencing enhancement. (Doc. 1 at 4.)^[2]Finally, Petitioner argues that relief under 28 U.S.C. § 2241 is proper because he did not have an unobstructed procedural shot at presenting his claims. Petitioner states that he did not have a crystal ball to foresee the argument that the state statutes were divisible (Doc. 21 at 4-5), and therefore “not deemed violent.” (Doc. 1 at 4.)

         III. DISCUSSION

         A. The Court Lacks Jurisdiction over Petitioner's Successive § 2255 Petition

         Although the Petition references 28 U.S.C. § 2241, the Petition is properly brought under § 2255, not § 2241. “A federal prisoner who seeks to challenge the legality of confinement must generally rely on a § 2255 motion to do so.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012); see also Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (“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.”). An exception to this general rule is created by § 2255(e), which is also known as the “escape hatch.” The escape hatch permits a habeas ...