United States District Court, D. Arizona
HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Philip James Chillemi has filed an Amended Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 7.)
Summary of Conclusion.
2004, Petitioner was sentenced in CR 03-00917-PHX-PGR for
Bank Robbery in violation of 18 U.S.C. § 2113(a).
Petitioner had several, prior Bank Robbery convictions. In
2006, the Ninth Circuit affirmed Petitioner's
convictions. In 2007, Petitioner's 28 U.S.C. § 2255
petition was denied. Petitioner now requests, under 28 U.S.C.
§ 2241, that the Court find that he is actually innocent
of his Career Offender sentencing enhancement and resentence
him. Petitioner argues that federal Bank Robbery should not
qualify as a ‘crime of violence' under USSG
§4B1.1. Because Bank Robbery is a crime of violence, the
Court will recommend that the Petition be denied and
dismissed with prejudice.
August 16, 2004, Petitioner was sentenced in CR
03-00917-PHX-PGR for Bank Robbery in violation of 18 U.S.C.
§ 2113(a). (CR 03-00917 at doc 59.) Petitioner was
sentenced to 240 months' imprisonment followed by three
years of supervised release.Petitioner's conviction was
affirmed. See United States v. Chillemi, 171 Fed.
App'x. 41, 42, 2006 WL 620739, at *1 (9th Cir. 2006)
(affirming conviction and denying limited remand under
United States v. Ameline, 409 F.3d 1073 (9th Cir.
2005) (en banc) “as unnecessary”).
Prior 28 U.S.C. § 2255 Petition.
February 26, 2007, Petitioner filed a Motion to Vacate, Set
Aside, or Correction Sentence Under 28 U.S.C. § 2255. On
October 12, 2007, the Court denied Petitioner's §
2255 petition. (CV 03-00917-PHX-PGR at doc. 92-93.)
Petitioner's 28 U.S.C. § 2241 Habeas
March 5, 2018, Petitioner filed a 28 U.S.C. § 2241
Petition for Writ of Habeas Corpus. (Doc. 1.) On May 8, 2018,
Petitioner filed an Amended Petition. (Doc. 7.)
“Petitioner argues he is actually innocent of the
imposed sentence because the trial court sentenced Petitioner
as a career offender, ‘even though the grounds to
justify that enhancement are not supported.' Petitioner
argues that this court has § 2241 jurisdiction because
he is actually innocent of the imposed sentence and has not
had an unobstructed procedural shot at presenting his
claim.” (Doc. 8 at 2.) On September 19, 2018,
Respondents submitted a Response. (Doc. 16.) On January 31,
2019, Petitioner filed a Reply. (Doc. 30.)
lacks jurisdiction to bring this § 2241 petition because
he is not actually innocent. “[I]n order to determine
whether jurisdiction is proper, a court must first determine
whether a habeas petition is filed pursuant to [28 U.S.C.]
§ 2241 or 2255 before proceeding to any other
issue.” Hernandez v. Campbell, 204 F.3d 861,
865 (9th Cir. 2000). Challenges to the legality of a
conviction or sentence generally must be made in a motion to
vacate sentence filed under § 2255 in the sentencing
court. Harrison v. Ollison, 519 F.3d 952, 955 (9th
Cir. 2008). Petitions that “challenge the manner,
location, or conditions of a sentence's execution must be
brought pursuant to § 2241 in the custodial
court.” Hernandez, 204 F.3d at 864. A prisoner