1 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SERGIO SOSA

- SANCHEZ,

Petitioner

- Appellant,

v. BONITA S. MOSLEY,

Respondent

- Appellee. No. 16

- 56375
D.C. No. 2:16

- cv - 02885

- DSF

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Submitted February 16, 2018 ** Pasadena, California Before: McKEOWN and WARDLAW, Circuit Judges, and MENDOZA, *** District Judg e. Sergio Sosa

- Sanchez appeals from the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition

. A federal prisoner challenging the legality of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

** * The Honorable Salvador Mendoza, Jr., United States District Judge for the Eastern District of Washington, sitting by designation. 

# FILED

MAR 7 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 56375

sentence must generally do so by motion raised in the sentencing court pursuant to
28 U.S.C. § 2255

. Section 2255 contains an exception

— known as the “escape hatch” or “savings clause”

— which allows petitioners to file a habeas corpus petition pursuant to § 2241 to contest a federal sentence where the remedy under § 2255 is “ inadequate or ineffectiv e to test the legality of his detention.” Id. § 2255(e); see also Hernandez v. Campbell , 204 F.3d 861, 864 (9th Cir. 2000)

. Because Sosa

- Sanchez cannot invoke § 2255’s escape hatch, he was not entitled to proceed under § 2241, and we must dismiss his pet ition.

“ A petition meets the escape hatch criteria where a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim. ” Alaimalo v. United States , 645 F.3d 1042, 1047 (9th Cir. 2011)

. In determining whether a petitioner 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’; a

nd ( 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 v. Pontesso , 328 F.3d 1057, 1060

– 61 (9th Cir. 2003) )

. Sosa

- Sanchez’s petition fails because he cannot establish that he lacked an unobstructed procedural shot to bring the petition within the one

- year § 2255 limitations period

. Sosa

- Sanchez is currently serving time on a 2015 conviction3 16

- 56375

for illegal reentry based on the reinstatement of a 1995 deportation order

. The substance of Sosa

- Sanchez’s § 2241 petition challenges his 2013 illegal reentry conviction under 8 U.S.C. § 1326 on the grounds that his initial deportation order was invalid because it relied on a state law conviction for bei ng a felon in possession of a firearm under California Penal Code § 12021(c)(1) , which is not a categorical match for a federal removal firearms offense

. While Sosa

- Sanchez makes a colorable argument regarding the validity of his conviction, the legal bas is for this argument

— the Supreme Court’s decision in Moncrieffe v. Holder , 133 S. Ct. 1678 (2013)

—

was available to him during the one

- year § 2255 limitations period.
Because Sosa

- Sanchez’s petition did not qualify for § 2255’s escape hatch, the district court lacked jurisdiction to hear the petition. The district court’s decision is VACATE D and Sosa

- Sanchez’s petition is
DISMISS ED

.