Edwin Marrero v. Richard Ives , 682 F.3d 1190 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN MARRERO, 
Petitioner-Appellant, No. 09-16053
v. D.C. No.
RICHARD B. IVES, Warden;  2:08-cv-01853-
JONATHAN KING, Prosecutor; PAUL FCD-DAD
DELACOURT, FBI Agent, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
April 19, 2012—San Francisco, California
Filed June 19, 2012
Before: Mary M. Schroeder, Sidney R. Thomas, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
7065
MARRERO v. IVES 7067
COUNSEL
Quin Denvir, Davis, California, for the petitioner-appellant.
Mark J. McKeon, Assistant United States Attorney, Fresno,
California, for the respondents-appellees.
OPINION
GRABER, Circuit Judge:
Petitioner Edwin Marrero filed a petition for habeas corpus,
pursuant to 28 U.S.C. § 2241, in the Eastern District of Cali-
fornia. The district court construed the petition as a motion
under 28 U.S.C. § 2255 and dismissed it for lack of jurisdic-
tion. We affirm.
The government charged Petitioner, in the United States
District Court for the Northern District of Illinois, with two
7068 MARRERO v. IVES
counts of interference with interstate commerce by threat or
violence, in violation of 18 U.S.C. § 1951, and use of a fire-
arm during the commission of a crime of violence, in viola-
tion of 18 U.S.C. § 924. The jury convicted him on all counts.
After classifying Petitioner as a career offender under the
United States Sentencing Guidelines, the court sentenced him
to 240 months’ imprisonment on counts 1 and 2 and an addi-
tional 84 months’ imprisonment for the firearm charge.
Petitioner appealed to the Seventh Circuit, which affirmed
the convictions and sentence in 2002. The United States
Supreme Court denied certiorari. Petitioner then filed a
motion under § 2255 to vacate or set aside his sentence, which
the District Court for the Northern District of Illinois denied.
According to Petitioner, he did not receive notice of that
denial until almost a year later. He then filed a Notice of
Appeal with respect to the § 2255 proceeding, which the court
dismissed as untimely.
Several months after that dismissal, in 2008, Petitioner filed
a pro se habeas petition under § 2241 in the Eastern District
of California, the jurisdiction in which he was then incarcer-
ated. Concluding that Petitioner had failed to make an ade-
quate claim of actual innocence, the district court construed
the petition as a § 2255 motion and dismissed it for lack of
jurisdiction. Petitioner timely appeals. We review de novo the
dismissal of a habeas petition. Ivy v. Pontesso, 328 F.3d 1057,
1059 (9th Cir. 2003).
[1] A federal prisoner who seeks to challenge the legality
of confinement must generally rely on a § 2255 motion to do
so. See 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.” (citation omitted)). There
is, however, an exception to that general rule. Under the “es-
MARRERO v. IVES 7069
cape hatch” of § 2255, a federal prisoner may file a § 2241
petition if, and only if, the remedy under § 2255 is “inade-
quate or ineffective to test the legality of his detention.” Id.
(internal quotation marks omitted). We have held that a pris-
oner may file a § 2241 petition under the escape hatch when
the prisoner “(1) makes a claim of actual innocence, and (2)
has not had an unobstructed procedural shot at presenting that
claim.” Id. at 898 (internal quotation marks omitted).
[2] Petitioner makes two separate claims of “actual inno-
cence.” First, Petitioner uses the phrase “actual innocence” in
his petition and seems to suggest that he was wrongly con-
victed. Construing his pro se filing liberally, Thomas v. Pon-
der, 611 F.3d 1144, 1150 (9th Cir. 2010), Petitioner may have
intended to raise the claim that he was factually innocent of
his crimes of conviction. But he introduced no evidence tend-
ing to show that he did not commit the robberies underlying
his convictions. Thus, even if Petitioner raised a claim of fac-
tual innocence, he failed to demonstrate that, “in light of all
the evidence, it is more likely than not that no reasonable
juror would have convicted him.” Stephens, 464 F.3d at 898(internal quotation marks omitted). Furthermore, Petitioner
has not demonstrated that he never had an “unobstructed pro-
cedural shot” at presenting the claim that he was factually
innocent of his crimes. Although he asserts that he did not
receive timely notice of the Illinois district court’s dismissal
of his § 2255 motion, he fails to argue that “the legal basis for
[his] claim did not arise until after he had exhausted his direct
appeal and first § 2255 motion.” Alaimalo v. United States,
645 F.3d 1042, 1047 (9th Cir. 2011) (internal quotation marks
omitted). He therefore fails to meet either requirement for fil-
ing a § 2241 petition under the escape hatch.
Second, Petitioner argues that he is “actually innocent” of
being a career offender under the Sentencing Guidelines. He
argues that, under the 2007 amendments to the Sentencing
Guidelines, two of his prior convictions are now considered
“related” offenses, because he was sentenced for them on the
7070 MARRERO v. IVES
same day, and that he therefore would not qualify as a career
offender. Compare U.S.S.G. § 4A1.2 cmt. n.3 (2000) with
U.S.S.G. § 4A1.2(a)(2) (2007).
[3] Whatever the merits of Petitioner’s argument that he
would not qualify as a career offender were he to be sen-
tenced under the post-2007 Guidelines, his claim is not one of
actual innocence. “In this circuit, a claim of actual innocence
for purposes of the escape hatch of § 2255 is tested by the
standard articulated by the Supreme Court in Bousley v.
United States, 523 U.S. 614[, 623] (1998).” Stephens, 464
F.3d at 898. “ ‘[A]ctual innocence’ means factual innocence,
not mere legal insufficiency.” Bousley, 523 U.S. at 623. We
have not yet resolved the question whether a petitioner may
ever be actually innocent of a noncapital sentence for the pur-
pose of qualifying for the escape hatch. It is clear, however,
that Petitioner’s claim that two of his prior offenses should no
longer be considered “related,” and that he was therefore
incorrectly treated as a career offender, is a purely legal claim
that has nothing to do with factual innocence. Accordingly, it
is not a cognizable claim of “actual innocence” for the pur-
poses of qualifying to bring a § 2241 petition under the escape
hatch.
[4] Our sister circuits are in accord that a petitioner gener-
ally cannot assert a cognizable claim of actual innocence of
a noncapital sentencing enhancement. See Bradford v. Tamez
(In re Bradford), 660 F.3d 226, 230 (5th Cir. 2011) (per
curiam) (“[A] claim of actual innocence of a career offender
enhancement is not a claim of actual innocence of the crime
of conviction and, thus, not the type of claim that warrants
review under § 2241.”); Gilbert v. United States, 640 F.3d
1293, 1323 (11th Cir. 2011) (en banc) (“[T]he savings clause
does not authorize a federal prisoner to bring in a § 2241 peti-
tion a claim, which would otherwise be barred by § 2255(h),
that the sentencing guidelines were misapplied in a way that
resulted in a longer sentence not exceeding the statutory max-
imum.”), cert. denied, 132 S. Ct. 1001 (2012); Unthank v.
MARRERO v. IVES 7071
Jett, 549 F.3d 534, 536 (7th Cir. 2008) (holding that actual
innocence, under the escape hatch, is factual innocence of the
crime of conviction); Trenkler v. United States, 536 F.3d 85,
99 (1st Cir. 2008) (noting that “[m]ost courts have required a
credible allegation of actual innocence to access the savings
clause” and holding that the petitioner failed to make such a
showing where he did not claim actual innocence of the crime
of conviction or allege that he was sentenced to a greater term
of imprisonment than authorized by statute); Poindexter v.
Nash, 333 F.3d 372, 382 (2d Cir. 2003) (“[W]hatever the
merit of the contention that the Guidelines were misapplied in
the treatment of [the petitioner’s] three undisputed prior con-
victions, his claim that the three crimes should have been
treated as one crime is not cognizable as a claim of actual
innocence.”); Okereke v. United States, 307 F.3d 117, 120-21
(3d Cir. 2002) (holding that the petitioner could not qualify
for the escape hatch where he merely challenged his sentence
and did not claim factual innocence of the crime of convic-
tion); United States v. Peterman, 249 F.3d 458, 462 (6th Cir.
2001) (holding that petitioners cannot qualify for the escape
hatch when they “do not argue innocence but instead chal-
lenge their sentences”).
Nonetheless, Petitioner argues that we previously have held
that sentencing claims may be brought under the escape hatch.
He relies on Harrison v. Ollison, 519 F.3d 952 (9th Cir.
2008), and Hernandez v. Campbell, 204 F.3d 861 (9th Cir.
2000) (per curiam), for that proposition. His reliance is mis-
placed. In Harrison, the petitioner claimed that a subsequent
clarification of the statute under which he was convicted ren-
dered him actually innocent of the crime of conviction. See
Harrison, 519 F.3d at 959 (“[The petitioner] contends that
under the Supreme Court’s interpretation of § 844(i) in Jones,
the conduct for which he was convicted no longer violates the
statute because the boat and van he destroyed were not used
in and did not affect interstate commerce.”).
7072 MARRERO v. IVES
In Hernandez, we held only that the district court must
answer the threshold jurisdictional question whether a petition
is properly brought under § 2241 or is, instead, a disguised
§ 2255 motion, before it can proceed to the merits of the
claim. 204 F.3d at 866. Because the district court had failed
to decide whether the petitioner’s challenge to his sentence
qualified for the escape hatch, we remanded to allow the dis-
trict court to consider that question in the first instance. Id. at
863-64, 866. We said nothing about whether the petitioner’s
challenge to his sentence could qualify as a claim of “actual
innocence” for the purpose of filing a § 2241 petition under
the escape hatch.1
As a final matter, we note that some of our sister circuits
have recognized exceptions to the general rule that a peti-
tioner cannot be actually innocent of a noncapital sentence
under the escape hatch. Those exceptions generally fall into
three categories. First, some courts have held that a petitioner
may be actually innocent of a sentencing enhancement if he
was factually innocent of the crime that served as the predi-
cate conviction for the enhancement. McKay v. United States,
657 F.3d 1190, 1199 (11th Cir. 2011), petition for cert. filed,
___ U.S.L.W. ___, (U.S. Apr. 23, 2012) (No. 11-9985);
United States v. Pettiford, 612 F.3d 270, 282 (4th Cir.), cert.
denied, 131 S. Ct. 620 (2010); Poindexter, 333 F.3d at
381-82; Selsor v. Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994).
Second, some courts have suggested that a petitioner may
qualify for the escape hatch if he received a sentence for
which he was statutorily ineligible. See Gibbs v. United
States, 655 F.3d 473, 479 (6th Cir. 2011) (“A challenge to the
sentencing court’s guidelines calculation . . . only challenges
1
Furthermore, we decided Hernandez before we had established a test
for when federal prisoners could resort to the escape hatch to file a § 2241
petition. See Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (“We
have not considered when, or whether, a federal prisoner may resort to
§ 2241 in order to avoid the limitations on second or successive petitions
contained in § 2255.”).
MARRERO v. IVES 7073
the legal process used to sentence a defendant and does not
raise an argument that the defendant is ineligible for the sen-
tence she received. The Supreme Court did not intend the
‘actual innocence’ exception to save such procedural
claims.”), cert. denied, 2012 WL 1252782 (U.S. Apr. 16,
2012) (No. 11-8151); Gilbert, 640 F.3d at 1323 (declining to
decide whether a petitioner could bring a § 2241 petition
under the savings clause if “he was sentenced to a term of
imprisonment exceeding the statutory maximum”). And third,
some courts have left open the possibility that a petitioner
might be actually innocent of a sentencing enhancement if the
sentence resulted from a constitutional violation. Trenkler,
536 F.3d at 99-100; Higgins v. Smith, 991 F.2d 440, 441-42
(8th Cir. 1993).
[5] We need not and do not decide whether to endorse any
of the exceptions recognized in other circuits, because Peti-
tioner does not qualify for any of them. Petitioner does not
claim that he was factually innocent of his prior convictions,
nor does he argue that he was statutorily ineligible for the sen-
tence he received, nor does he allege a constitutional viola-
tion. We simply hold that the purely legal argument that a
petitioner was wrongly classified as a career offender under
the Sentencing Guidelines is not cognizable as a claim of
actual innocence under the escape hatch. Because Petitioner
failed to meet the escape hatch criteria, he cannot bring his
claims in a § 2241 petition. We therefore affirm the district
court’s dismissal of the petition for lack of jurisdiction.
AFFIRMED.