ORDER

JOHN Z. BOYLE, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT 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 may not bring a second or successive petition under § 2255 without first obtaining certification from "a panel of the appropriate court of appeals." 28 U.S.C. § 2255(h); Harrison, 519 F.3d at 955.

Under § 2255(e), however, there is an "escape hatch" or "savings clause" that allows a petitioner to challenge the legality of a sentence in the custodial court through a petition filed under § 2241. The "escape hatch" or "savings clause" allows a federal prisoner to file a habeas petition under § 2241 to challenge the legality of a sentence "if, and only if, the remedy under § 2255 is `inadequate or ineffective to test the legality of his detention'" Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) (citation omitted); see also 28 U.S.C. § 2255(e). A § 2241 petition is available under the "escape hatch" of § 2255 when a petitioner "(1) makes a claim of actual innocence, and (2) has not had an `unobstructed procedural shot' at presenting that claim." Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). If a petitioner meets the escape hatch requirements, the petitioner may avoid the procedural prohibition on the filing of successive petitions under § 2255. See Ivy v. Pontesso, 329 F.3d 1057, 1059-60 (9th Cir. 2003).

Actual innocence of a sentencing enhancement may not satisfy the "escape hatch" requirement.

Stephens, 464 F.3d at 898.

Petitioner, by claiming that his prior convictions no longer serve as predicates that would qualify him as a Career Offender, is plainly challenging the legality of his sentence not the jury verdict. Petitioner in fact asserts that "he is actually innocent of the Court's sentence." (Doc. 7-1 at 11.) But the Ninth Circuit has not recognized that actual innocence of a sentencing enhancement will satisfy the escape hatch of § 2255. "It is far from clear that [a petitioner] can sustain a claim of actual innocence of an enhanced sentence under the Career Offender provision of the United States Sentencing Guidelines; we have not previously so held, and we need not do so in this case because he does not meet the second part of the escape hatch test." Green v. Johnson, 744 Fed. App'x. 413, 413 (9th Cir. 2018). To prove actual innocence, Bousley requires Petitioner to prove it is more likely than not that no reasonable juror would have convicted him. Petitioner has not met this standard. Even if actual innocence applied to sentencing, Petitioner fails to meet this standard for the reasons explained below.

B. Merits.

Petitioner argues that the "instant conviction for bank robbery should not qualify as a `crime of violence' under USSG §4B1.1 because bank robbery under 18 U.S.C. § 2113(a) does not categorically entail an element of `the use, attempted use, or threatened use of physical force against the person of another' under USSG §4B1.2(a)." (Doc. 7-1 at 7.) But bank robbery is a crime violence, so Petitioner's argument fails. "Swanson further contends that he is actually innocent of being a career offender because his predicate bank robbery convictions no longer constitute a crime of violence under the elements clause of U.S.S.G. § 4B1.2. This argument is foreclosed." United States v. Swanson, 744 Fed. App'x. 527 (9th Cir. 2018) (citing United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018), cert. denied, 139 S.Ct. 203 (2018)).

In Watson, the court held that "bank robbery qualifies as a crime of violence because even its least violent form requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson2 standard." Watson, 881 F.3d at 785. Petitioner argues that Watson conflicts with United States v. Parnell, 818 F.3d 974, 980 (9th Cir. 2016) (finding "a conviction under the Massachusetts statute does not qualify as a violent felony under ACCA's force clause"). (Doc. 7-1 at 8.) But that argument has been rejected. "Parnell pre-dates both Gutierrez3 and Watson, portending that whatever conflict Movant seeks to tease out is now in the law moot. Second, Parnell does not analyze the federal bank robbery statute, but instead analyzes a Massachusetts robbery statute in conjunction with the ACCA. See 818 F.3d at 979." Dixon v. United States, CV-16-04590-PHX-SRB, 2018 WL 6381209, at *2 (D. Ariz. 2018). Petitioner is not actually innocent of his sentencing enhancement.

C. Certificate of Appealability.

A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court's denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). In Slack v. McDaniel, 529 U.S. 473 (2000), the Court held that, in the certificate of appealability context, "[w]here a district court has rejected the constitutional claims [in the petition] on the merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484.

Whether actual innocence of a sentencing enhancement satisfies the "escape hatch" of § 2255 may be an open question.4 But due to binding Ninth Circuit precedent on the merits of Petitioner's claim, this Court finds that reasonable jurists would not find the Court's assessment of the constitutional claims debatable or wrong. See also Dixon, 2018 WL 6381209, at *2 (denying certificate of appealability after rejecting "Movant's constitutional claims on merit"). This Court will therefore recommend that a certificate of appealability be denied.

IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244 (doc. 7) be DENIED and DISMISSED WITH PREJUDICE.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgement. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.

Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114. 1121 (9thCir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.