United States District Court, D. Arizona
Honorable Jennifer Zipps United States District Judge
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.)
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.
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).
FACTUAL AND PROCEDURAL BACKGROUND
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.)
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).
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.)
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.)
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
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.)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.)
The Court Lacks Jurisdiction over Petitioner's Successive
§ 2255 Petition
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 ...