ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

(ECF Nos. 32, 53)

LAWRENCE J. O'NEILL, Chief District Judge.

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On September 23, 2019, the Magistrate Judge issued Findings and Recommendation that recommended Respondent's motion to dismiss be granted and the petition for writ of habeas corpus be dismissed for lack of jurisdiction as Petitioner failed to satisfy the criteria to bring a § 2241 petition pursuant to the escape hatch of 28 U.S.C. § 2255(e). (ECF No. 53). Petitioner filed timely objections. (ECF No. 54).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Findings and Recommendation is supported by the record and proper analysis.

In his objections, Petitioner challenges the Magistrate Judge's characterization that Petitioner was not convicted under the aiding and abetting theory and only convicted under the Pinkerton theory of liability with respect to his § 924(c) offense. Petitioner contends that Rosemond is retroactively applicable to his case and that he is entitled to habeas relief "[b]ecause there is no nexus between that particular firearm\silencer" and Petitioner. (ECF No. 54 at 2, 3).1

A petitioner may proceed under § 2241 pursuant to the escape hatch or savings clause when the petitioner claims to be: "(1) factually innocent of the crime for which he has been convicted; and, (2) has never had an `unobstructed procedural shot' at presenting this claim." Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (citing Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000)). To determine whether a petitioner never had an unobstructed procedural shot to pursue his claim, the Court considers "(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." Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (quoting Ivy, 328 F.3d at 1060-61). "An intervening court decision must `effect a material change in the applicable law' to establish unavailability." Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (quoting Harrison, 519 F.3d at 960). That is, an intervening court decision must "constitute[] a change in the law creating a previously unavailable legal basis for petitioner's claim." Harrison, 519 F.3d at 961 (second emphasis added) (citing Ivy, 328 F.3d at 1060).

Even assuming, without deciding, that Petitioner was convicted under the aiding and abetting theory2 and that Rosemond v. United States, 572 U.S. 65 (2014), is retroactively applicable to cases on collateral review, the Court finds that Petitioner still fails to satisfy the criteria to bring a § 2241 petition pursuant to the escape hatch of § 2255(e) because Petitioner has not established that he never had an unobstructed procedural shot at presenting his actual innocence claim regarding the § 924(c) offense.

Petitioner previously raised claims challenging the sufficiency of the evidence regarding his § 924(c) conviction on direct appeal and in his motion for new trial. In addition, the Seventh Circuit has held that a claim based on Rosemond3 was not previously unavailable under its precedent for purposes of invoking the escape hatch under 28 U.S.C. § 2255(e). Although Rosemond had not been decided at the time of Petitioner's trial, direct appeal, and first § 2255 motion, the argument made in Rosemond was not foreclosed by the state of the law in the Seventh Circuit. Montana v. Cross, 829 F.3d 775, 784-85 (7th Cir. 2016).4 See Harrison, 519 F.3d at 961 (noting that while a new Supreme Court decision may give "additional encouragement for defendants to argue" a certain claim, such additional encouragement does not necessarily "constitute[] a change in the law creating a previously unavailable legal basis for petitioner's claim").

The Court also declines to grant Petitioner's request to transfer the instant habeas proceeding back to the United States District Court for the Southern District of Indiana, where the petition was originally filed. The United States District Court for the Southern District of Indiana transferred Petitioner's petition because "the petitioner has been moved . . . [and] no longer has any connection to this district and the respondent has not yet filed a return to the show cause order." (ECF No. 9 at 1). The Court adopts the Magistrate Judge's previous determination:

(ECF No. 33 at 2).

Having determined that Petitioner is not entitled to habeas relief, the Court now turns to whether to issue a certificate of appealability. "Where a petition purportedly brought under § 2241 is merely a `disguised' § 2255 motion, the petitioner cannot appeal from the denial of that petition without a [certificate of appealability]." Harrison, 519 F.3d at 958. The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

A court should issue a certificate of appealability if "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner's § 2241 petition should be dismissed debatable or wrong, or that Petitioner should be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability.

Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.