Hernandez-Escarsega v. Morris, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

DONACIANO

HERNANDEZ-ESCARSEGA,

Petitioner-Appellant,

v.



E.W. MORRIS, Warden,

Respondent-Appellee.

No. 01-6370

(W.D. Okla.)

(D.Ct. No. 00-CV-1075-L)

ORDER AND JUDGMENT
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Before BARRETT, PORFILIO, and

BRORBY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Donaciano Hernandez-Escarsega, a federal prisoner appearing pro se,

appeals the district court's denial of his habeas petition brought under 28 U.S.C. § 2241. We affirm.

Mr. Hernandez-Escarsega is incarcerated on several charges related to his

involvement in a marijuana distribution scheme as explained in United States v.

Hernandez-Escarsega, 886 F.2d 1560, 1563 (9th Cir. 1989), cert. denied, 497

U.S. 1003 (1990). Of particular relevance to this appeal, the United State

District Court for the Southern District of California sentenced Mr. Hernandez-Escarsega to

thirty-five years(1)

imprisonment for engaging in a continuing

criminal enterprise in violation of 21 U.S.C. § 848.

On direct appeal, Mr. Hernandez-Escarsega challenged the district court's

jury instruction on the continuing criminal enterprise count. Hernandez-Escarsega,

886 F.2d at 1572. He argued the district court "compromised his

constitutional right to a unanimous verdict by failing to instruct the jury that it

must unanimously agree on what three acts satisfied section 848's continuing

series requirement." Id. In considering the appeal, the Ninth Circuit did not

reach the issue of whether there was instructional error, because "the facts

support the conclusion that the jury unanimously agreed on three predicate

offenses." Id. Thus, the Ninth Circuit affirmed the continuing criminal

enterprise conviction. Id. at 1573. Mr. Hernandez-Escarsega appealed to the

Supreme Court but was denied a writ of certiorari. HernaNdez-Escarsega v.

United States, 497 U.S. 1003 (1990).

Mr. Hernandez-Escarsega began his attempts for habeas relief

approximately seven years after his conviction and sentence were final. The

United States District Court for the Southern District of California dismissed his

first habeas petition, brought under 28 U.S.C. § 2255 because it was not filed

within the one-year statute of limitations in 28 U.S.C. § 2244(d). This petition

did not assert any claim involving the continuing criminal enterprise jury

instruction.

Over a year later, the Supreme Court decided Richardson v. United States,

526 U.S. 813 (1999). Richardson held "a jury in a federal criminal case brought

under § 848 must unanimously agree not only that the defendant committed some

'continuing series of violations' but also that the defendant committed each of

the individual 'violations' necessary to make up that 'continuing series.'" Id. at

815.

Mr. Hernandez-Escarsega then sought permission to file a second § 2255

petition based on the Richardson decision. The Ninth Circuit denied the request

holding he had not made a prima facie showing of

(1) newly discovered evidence that, if proven and viewed in

light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would

have found the defendant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously

unavailable.

Mr. Hernandez-Escarsega then filed the § 2241 petition that is the subject

of this appeal, again challenging the continuing criminal enterprise jury

instruction. The United States District Court for the Western District of

Oklahoma, dismissed the petition. The district court first found Mr. Hernandez-Escarsega was

not entitled to relief under § 2241 because he "ha[d] not presented

evidence of actual innocence but [was] really arguing legal innocence." In the

alternative, the court held the § 2241 claim should be dismissed on the merits

because "the appellate court on direct appeal found that any error committed by

the trial court was harmless."

"We review the district court's denial of [Mr. Hernandez-Escarsega's]

habeas corpus petition de novo." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.

1996). We agree Mr. Hernandez-Escarsega is not entitled to relief under § 2241.

Typically, "[a] petition under 28 U.S.C. § 2241 attacks the execution of a

sentence rather than its validity." Haugh v. Booker, 210 F.3d 1147, 1149 (10th

Cir. 2000) (quotation marks and citation omitted). In contrast, "[a] 28 U.S.C. § 2255 petition attacks the legality of detention." Id.
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By arguing the trial court

gave an incorrect jury instruction, Mr. Hernandez-Escarsega is challenging the

validity of his sentence. Section 2241 "is not an additional, alternative, or

supplemental remedy to 28 U.S.C. § 2255." Bradshaw, 86 F.3d at 166. Mr.

Hernandez-Escarsega can only challenge the validity of his sentence with a

§ 2241 petition if he shows § 2255 is "inadequate or ineffective to test the

legality of his detention." 28 U.S.C. § 2255.

Mr. Hernandez-Escarsega argues § 2255 is inadequate and ineffective

because "(1) Richardson was decided after his first § 2255 Motion; (2) [he]

was

denied 28 U.S.C. § 2244 certification to file a second or successive § 2255

Motion; [and] (3) [he] is entitled to judicial review of his Richardson claim." We

have held "[f]ailure to obtain relief under [§] 2255 does not establish that the

remedy so provided is either inadequate or ineffective." Bradshaw, 86 F.3d at

166. Furthermore, "the mere fact [Mr. Hernandez-Escarsega] is precluded from

filing a second § 2255 petition does not establish that the remedy in § 2255 is

inadequate." Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999). Mr.

Hernandez-Ecarsega argues Caravalho is not applicable because there the court

was not faced with an intervening change in the law. However, we have applied

Caravalho in a similar instance when a prisoner was seeking § 2241 relief due

to

the intervening Richardson decision. Myers v. Booker, No. 00-3232,

2000 WL

1595967 (10th Cir. Oct. 26, 2000) (unpublished decision).
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For us to consider

Mr. Hernandez-Escarsega's § 2241 petition, he must show something more than

the fact he was not permitted to file a successive § 2255 petition.

Mr. Hernandez-Escarsega argues he should be able to present his § 2241

claim because he is "legally and factually innocent." Other circuits allow "a

federal prisoner who is 'actually innocent' of the crime of conviction, but who

never has had 'an unobstructed procedural shot' at presenting a claim of

innocence, may resort to § 2241 if the possibility of relief under § 2255 is

foreclosed." Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (describing

construction of federal habeas statutes in other jurisdictions). We have not

adopted such a construction of the habeas statues, and do not need to decide

whether to embrace that construction in this case.

Assuming, without deciding, actual innocence would merit our

consideration of his § 2241 petition, Mr. Hernandez-Escarsega has not made the

requisite showing. In order to invoke the actual innocence exception, other

circuits require the petition to show factual innocence rather than legal

innocence. See, e.g., Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th

Cir. 2001); Triestman v. United States, 124 F.3d 361, 379-80 (2d Cir. 1997). "To

establish actual innocence, petitioner must demonstrate that, in light of all the

evidence, it is more likely than not that no reasonable juror would have convicted

him." Bousley v. United States, 523 U.S. 614, 623 (1998) (quotation marks and

citation omitted). "[T]he core idea is that the petitioner may have been

imprisoned for conduct that was not prohibited by law." Reyes-Requena, 243

F.3d at 903. Mr. Hernandez-Escarsega argues he is innocent "because he was not

convicted of the three (3) predicate offenses required to render a guilty verdict on

[the continuing criminal enterprise count]." This is an argument for legal

innocence rather than factual innocence. See Jeffers v. Chandler, 253 F.3d 827,

831 (5th Cir.) (holding petitioner's argument he was "'actually innocent' under

Richardson because the jurors were never instructed that they had to unanimously

convict him on each of the specific violations that made up the alleged

continuing series of violations" did not amount to a claim of actual innocence),

cert. denied, 122 S. Ct. 476 (2001). Consequently, Mr. Hernandez-Escarsega is

not entitled to relief under § 2241.

Mr. Hernandez-Escarsega has filed a motion to amend his prayer for relief.

Because we conclude Mr. Hernandez-Escarsega is not entitled to any relief, this

motion is moot.

Lastly, we consider Mr. Hernandez-Escarsega's motion to proceed in forma

pauperis. To proceed in forma pauperis, he "must show a financial inability to

pay the required filing fees and the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal."

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Because Mr.

Hernandez-Escarsega's petition presents only frivolous legal arguments in

support of his assertions, we deny his request to proceed in forma pauperis.

For these reasons we AFFIRM the district court opinion dismissing

Mr.

Escarsega's § 2241 petition and deny his motion to proceed in forma pauperis.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors

the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

1. The district court originally sentenced Mr.

Hernandez-Escarsega to forty years

on the continuing criminal enterprise charge, Hernandez-Escarsega, 886 F.2d at

1563,

but later reduced the sentence to thirty-five years.

2. We would not have jurisdiction over a

§ 2255 petition filed by Mr. Hernandez-Escarsega as § 2255 must be filed in "the

district that imposed the sentence." Haugh, 210

F.3d at 1149. We do however, have jurisdiction under 28 U.S.C. § 1291 to review the

denial of a § 2241 petition properly "filed in the district where the prisoner is confined."

Id.

3. We recognize Myers is not

binding precedent under Tenth Circuit Rule 36.3.

Nevertheless, it shows the consistency of our decisions.

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