                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 04 2013
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                            FOR THE NINTH CIRCUIT



PEDRO HERNANDEZ,                                 No. 11-35350

               Petitioner - Appellant,           D.C. No. 1:11-cv-00013-JDS

  v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

               Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Montana
                    Jack D. Shanstrom, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Pedro Hernandez appeals from the district court’s judgment denying his

28 U.S.C. § 2241 petition challenging his conviction and sentence for drug crimes

and money laundering. Because the district court lacked jurisdiction over the

petition, we vacate and remand.

       Hernandez argues that he satisfies the requirements of the “escape hatch” of


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 2255(e). This argument fails because Hernandez does not argue that

he is actually innocent of the charges of conviction, and the challenges that he

advances in his petition could have been raised on direct appeal or in his section

2255 motion. See Stephens v. Herrera, 464 F.3d 895, 898-99 (9th Cir. 2006)

(instructional error consisting in failure to require unanimity is not a claim of

“actual innocence” for escape hatch purposes); Harrison v. Ollison, 519 F.3d 952,

961 (9th Cir. 2008) (petitioner who could have raised claim on direct appeal or in

his first § 2255 motion cannot show that he did not have “unobstructed procedural

shot” at raising claim to qualify for escape hatch). Accordingly, Hernandez’s

petition is not properly brought under section 2241 but is, rather, a disguised

successive section 2255 motion over which the district court lacked jurisdiction.

See Harrison, 519 F.3d at 961-62.

      Although Hernandez failed to seek prior authorization to file a successive

section 2255 motion as required by section 2255(h), we construe the instant appeal

as a motion for such authorization. See United States v. Washington, 653 F.3d

1057, 1065 (9th Cir. 2011), cert. denied, 132 S. Ct. 1609 (2012). So construed, the

motion is denied, as Hernandez fails to identify “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



                                           2                                        11-35350
have found [him] guilty of the offense.” 28 U.S.C. § 2255(h)(1). Because the

district court denied Hernandez’s petition rather than dismissing it, and because

Hernandez does not satisfy the requirements of section 2255(h), we remand with

instructions to dismiss for lack of jurisdiction.

      VACATED and REMANDED with instructions to dismiss.




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