ORDER SUMMARILY DISMISSING § 2241 HABEAS PETITION

DAVID O. CARTER, District Judge.

The Court will dismiss this 28 U.S.C. § 2241 habeas petition summarily because the petition seeks relief only available, if at all, pursuant to a 28 U.S.C. § 2255 motion in the sentencing court, which is in the Southern District of New York. Petitioner challenges a portion of his sentence based on a 2013 Supreme Court case. That case cannot aid him, as explained below.

I.

BACKGROUND

Petitioner Ramon Acosta is a federal prisoner housed at Adelanto, in this judicial district. After an eleven-day trial in 2009, a federal jury in Manhattan convicted him of the following three crimes:

It is the Count 6 conviction that Petitioner now attacks.

Petitioner was sentenced to a total of 294 months in prison — 210 months each for the Counts 1 and 5, to run concurrently, and a consecutive 84 months sentence for Count 6, the brandishing offense. Pet. ¶ 1-6; see docket in United States v. Acosta (Acosta I), S.D.N.Y. No. 07 CR 1150. Petitioner appealed, but the Second Circuit affirmed in March of 2010. See United States v. Acosta, 367 Fed. Appx. 259 (2d Cir. 2010) (Acosta II). Six months later, Petitioner moved for § 2255 relief, but the trial court denied that motion on December 20, 2010. See docket in Acosta I.

Three years and three months later, Petitioner filed the instant action, labeling it as a § 2241 habeas petition. He asserts that, based on a 2013 Supreme Court decision, Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L. Ed. 2d 314 (2013), he is now "actually innocent" of brandishing under Count 6 and should be resentenced accordingly.

II.

DISCUSSION

28 U.S.C. § 2255 generally provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). That section bars courts from entertaining most habeas petitions where "it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief[.]" In light of this rule, the statute on its face appears to bar the present action.

Section 2255, however, permits resort to a 28 U.S.C. § 2241 petition when a § 2255 motion is "inadequate or ineffective to test the legality of [the] detention." 28 U.S.C. § 2255. This clause is sometimes referred to as the "escape hatch" to § 2255's exclusivity provision. Lorentsen, 223 F.3d at 953.

The escape hatch rarely opens. A § 2255 motion cannot and should not be viewed as "inadequate" merely because the sentencing court has denied relief on the merits. Id. Any contrary ruling would nullify the statute's gatekeeping provisions, and Congress then would have accomplished little in its attempts to limit federal collateral review in passing laws such as the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Triestman v. United States, 124 F.3d 361, 374-76 (2nd Cir. 1997) (discussing Congressional intent to narrow collateral attacks).

"Along with many of our sister circuits," the Ninth Circuit has explained,

Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (collecting cases).1 The Fourth Circuit employs a similar test, opening the escape hatch when (1) a change in substantive law occurs, after the petitioner's direct appea and first § 2255 motion, "such that the conduct of which the petitioner was convicted" would no longer "be criminal," and (2) the prisoner cannot qualify for the Court of Appeals' authorization for another § 2255 motion, see 28 U.S.C. § 2244(b)(3)(A), because the new rule is not one of constitutional law. In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).

Here, the hatch remains firmly shut. His labelings aside, Petitioner makes no true claim of actual innocence — nor could he, for the case upon which he relies, Alleyne, simply cannot aid him. Explaining why requires a brief summary of Alleyne. Alleyne was convicted by a jury of using or carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), the minimum sentence for which is five years imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i). At sentencing, however, over Alleyne's objection, the trial judge made a bench finding that Alleyne had "brandished" the firearm he carried, thus raising the mandatory minimum sentence to seven years. See 18 U.S.C. § 924(c)(1)(A)(ii). The sentencing court determined that, under Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L. Ed. 2d 524 (2002), brandishing was a sentencing factor, which the court could find, independent of the jury, without violating Alleyne's Sixth Amendment right to a jury trial. The Court of Appeals affirmed. But Alleyne won certiorari, arguing that Harris ran afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi held that any "facts that increase the prescribed range of penalties to which a criminal defendant is exposed," other than the existence of prior convictions, "are elements of the crime[,]" which must be proved to a jury. Alleyne, 133 S. Ct. at 2160 (internal quotation marks omitted). The Supreme Court agreed with Alleyne and reversed. The district court erred when it imposed a seven-year mandatory minimum sentence for brandishing, the Alleyne Court explained, because the jury had made only the more general finding that Alleyne had used and carried a firearm during another crime (which carries a five-year mandatory sentence) without specifically finding, further, that he had brandished the firearm (a mandatory seven-year sentence). 133 S. Ct. at 2162-63.

Alleyne cannot aid Petitioner for at least three reasons. First and most fundamentally, no Alleyne error occurred. Petitioner was charged with and tried for brandishing, specifically, as set out in the initial indictment and later in the superseding information. See docket in Acosta I (Dec. 12, 2007 initial indictment against Petitioner (Document #1) under the moniker of "Arsenio Rodriguez," including Count Three for "brandishing" in violation of "Title 18, United States Code, Sections 924(c)(1)(A)(ii) and 2") (emphasis added); id. (Oct. 14, 2008 superseding information (Document #46)) (similar, but now charging Petitioner as "Ramon Acosta" and moving "brandishing" charge to Count Six). The jury convicted him of that specific brandishing charge. In contrast, Alleyne was convicted only of the more general offense of using and carrying a gun during another crime, and it was the trial judge, acting alone, who found that Alleyne's gun use constituted brandishing.

Second, even if Alleyne error had occurred, Petitioner still makes no claim of actual innocence. His conduct, like Allen Alleyne's, in using and carrying a gun during another offense, whether or not he brandished it, would still be illegal and would carry a five year mandatory prison sentence. In other words, Petitioner is asserting a two-year sentencing error, not actual innocence.

Third, Alleyne is inapplicable retroactively to aid Petitioner, whose conviction became final before Alleyne. See, e.g., United States v. Ennis, No. 13-50584, ___ Fed. Appx. ___, 2014 WL 969691 (5th Cir. Mar. 14, 2014) (Alleyne supplies no basis for a second or successive § 2255 motion); Chester v. Warden, No. 12-15119, ___ Fed. Appx. ___, 2014 WL 104150 (11th Cir. Jan. 13, 2014) (district court lacked jurisdiction over putative § 2241 petition asserting Alleyne claim) (escape hatch remains closed, in part because Alleyne does not apply retroactively); Morales-Ramirez v. Ivy, No. CV 13-4901 GW (RNB), 2014 WL 59732 (C.D. Cal.), at *3-*4 (similar).

For the foregoing reasons, the escape hatch cannot open. In turn, this means that the Court lacks jurisdiction and must dismiss.

III.

CONCLUSION

For the foregoing reasons, the action is DISMISSED without prejudice to Petitioner's pursuit of relief in the Southern District of New York, the Second and/or Ninth Circuit Courts of Appeals, or the Supreme Court.