Oscar Alvarado Henriquez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR RAFAEL ALVARADO No. 19-16790
HENRIQUEZ, AKA Oscar R. Alvarado,
AKA Oscar Rafael Alvarado-Henriquez, D.C. No. 2:18-cv-03128-KJM-KJN
Petitioner-Appellant,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General;
WENDELL ANDERSON, Sheriff Coroner
of Yuba County,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Former federal prisoner Oscar Rafael Alvarado Henriquez appeals pro se
from the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas corpus
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition and denying his motion for stay of removal. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
On appeal, Henriquez challenges only the dismissal of his § 2241 habeas
petition, contending the district court erred by failing to address the merits of his
petition. We review de novo. See Alaimalo v. United States, 645 F.3d 1042, 1047
(9th Cir. 2011). The district court properly concluded that Henriquez cannot bring
a § 2241 habeas petition under the escape hatch of 28 U.S.C. § 2255(e). Henriquez
did not establish that he is actually innocent of the crime of conviction. See
Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). Moreover, Henriquez
cannot demonstrate that he has not had an “unobstructed procedural shot” at
presenting his claims; he could have raised them in a timely 28 U.S.C. § 2255motion and may still seek other collateral relief in the sentencing court. See
Harrison v. Ollison, 519 F.3d 952, 960-61 (9th Cir. 2008). Accordingly, the
district court properly dismissed Henriquez’s petition for lack of jurisdiction. See
id. at 961-62.
Appellee’s motion to take judicial notice is granted.
AFFIRMED.
2 19-16790