                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 7 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SERGIO SOSA-SANCHEZ,                            No.    16-56375

                Petitioner-Appellant,           D.C. No. 2:16-cv-02885-DSF

 v.
                                                MEMORANDUM*
BONITA S. MOSLEY,

                Respondent-Appellee.

                   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 Judge.

      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.
                                          1
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 ineffective 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 petition.

      “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’; 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 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 conviction


                                           2                                       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 being 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 basis

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 VACATED and Sosa-Sanchez’s petition is

DISMISSED.




                                            3                                  16-56375
