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Chillemi v. United States

United States District Court, D. Arizona

May 8, 2019

Philip James Chillemi, Petitioner,
v.
United States of America, et al., Respondents.

          HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:

          ORDER

          HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE

         Petitioner Philip James Chillemi has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 7.)

         I. Summary of Conclusion.

         In 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.

         II. Background.

         A. Sentencing.

         On 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.[1]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”).

         B. Prior 28 U.S.C. § 2255 Petition.

         On 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.)

         III. Petitioner's 28 U.S.C. § 2241 Habeas Petition.

         On 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.)

         A. Jurisdiction.

         Petitioner 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 ...


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