ORDER OF DISMISSAL

Dkt. No. 12

JOSEPH C. SPERO, Chief Magistrate Judge.

INTRODUCTION

Petitioner, a federal prisoner convicted in Ohio but housed in this district, seeks habeas relief under 28 U.S.C. § 2241 from her federal convictions and sentence. As a general rule, federal prisoners must pursue such relief under 28 U.S.C. § 2255. Petitioner seeks relief under § 2241 on grounds that § 2255 is an inadequate means to test the legality of her conviction.

However, petitioner has not shown she is entitled to use § 2241, as pointed out in respondent's motion to dismiss. (Dkt. No. 12.) Because she cannot use § 2241, this Court lacks jurisdiction over her petition. Accordingly, the petition is DISMISSED.

BACKGROUND

In 2008 petitioner was convicted in federal court in Ohio on charges of wire fraud and other crimes. (Pet., Dkt. No. 1 at 2.) After conviction but before sentencing, petitioner fled to Mexico. (Mot. to Dismiss (MTD), Dkt. No. 12 at 3.) About a year later, in March 2009, the district court sentenced petitioner in absentia to 300 months in federal prison. (Id.) Petitioner's attorney filed a notice of appeal in the Sixth Circuit. (Id.) When petitioner failed to turn herself in, the appeal was dismissed. (Id.) In October 2010, Mexican authorities arrested petitioner, who was returned to the United States. (Id.) In December 2010, she appeared before the Ohio district court. (Id.)

In 2011, petitioner was housed at a federal prison in Dublin, California, where she remains. (Pet., Dkt. No. 1 at 10.) In 2018, she filed the current § 2241 petition, to which the Court ordered respondent to address. (Dkt. Nos. 1 and 7.) Respondent filed a motion to dismiss, the subject of the present order. (Dkt. No. 12.)

It appears petitioner never filed a § 2255 motion. Her co-defendant did, but it was unsuccessful. (MTD, Dkt. No. 12 at 5.)

The parties consented to magistrate judge jurisdiction. (Dkt. Nos. 5 and 16.)

STANDARD OF REVIEW

The Court may entertain a petition for writ of habeas corpus from a person claiming to be "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A district court considering an application for a writ of habeas corpus shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

DISCUSSION

Petitioner seeks to overturn her federal convictions. To this end, she has filed in this Court a petition under 28 U.S.C. § 2241, rather than, as is customary, filing a motion under § 2255 in the sentencing court. She seeks to use § 2241 because she believes that a § 2255 motion would be an inadequate or ineffective means to test the legality of her detention. (Pet., Dkt. No. 1 at 9.) She bases her use of 2241 on grounds that she is innocent, an assertion she believes is supported by "[n]ew evidence." (Id. at 3.) She also alleges claims of ineffective assistance of counsel, prosecutorial misconduct, judicial bias, and judicial misconduct. (Id. at 33-39, 40-49, 49-54.)

"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." Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (citing Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003)). This restriction cannot be avoided by filing a petition under 28 U.S.C. § 2241. Id. (citing Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999)).

There is an exception to this general rule. Section 2241 can be used if a federal prisoner can show that a motion under § 2255 is "inadequate or ineffective to test the validity of his detention." Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). This is known as the "savings clause," id. at 864, or the "escape hatch," Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). The Ninth Circuit has recognized it as a very "narrow exception." United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997).

When a prisoner files a habeas petition under § 2241 on grounds that the remedy provided by § 2255 is inadequate or ineffective, the district court must determine whether a § 2241 remedy is available under the escape hatch of § 2255. Hernandez, 204 F.3d at 864-65. This inquiry is critical to the determination of district court jurisdiction because the proper district for filing depends on whether the petition is filed pursuant to § 2241 or § 2255. Id. at 865. If the escape hatch is not properly invoked, then the Court lacks jurisdiction over the petition. Id.

A petition under the escape hatch is permissible "when a petitioner (1) makes a claim of actual innocence, and (2) has not had an `unobstructed procedural shot' at presenting that claim." Stephens, 464 F.3d at 898 (quoting Ivy, 328 F.3d at 1060).1 Id.

"In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether petitioner's claim `did not become available' until after a federal court decision." Harrison v. Ollison, 519 F.3d 952, 960-61 (quoting Stephens, 464 F.3d at 898). To this end, courts consider "(1) whether the legal basis for petitioner's claim `did not arise until after he had exhausted his direct appeal and first § 2255 motion;' and (2) whether the law changed `in any way relevant' to petitioner's claim after that first § 2255 motion. Id. (quoting Ivy, 328 F.3d at 1060-61).

Petitioner has made no such showing. First, new evidence can be presented in a § 2255 motion (§ 2255(f)(4)), as can her other claims, e.g., ineffective assistance of counsel, see Pirro, 104 F.3d 297, 299 ("The customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. § 2255") (citation omitted). Second, there is nothing indicating that the basis for her claims did not arise until after direct appeal. Nor is there any indication the law has changed. Third, petitioner's opposition, which she titled a traverse, makes no contention regarding the unobstructed procedural shot requirement.2 In sum, petitioner has failed to meet the unobstructed procedural shot requirement, or shown any reason her claims cannot be raised by by way of a § 2255 motion filed in the sentencing court.3 Because petitioner has not met the procedural shot requirement, it is unnecessary for the Court to consider her claim of innocence.

CONCLUSION

Respondent's motion to dismiss is GRANTED. (Dkt. No. 12.) This § 2241 habeas corpus action is DISMISSED for want of jurisdiction.

The Clerk shall terminate all pending motions, enter judgment in favor of respondent, and close the file.

IT IS SO ORDERED.