Mikhael Charles Dorise v. ANDRE MATEVOUSIAN, AKA Andre Mantevousian

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKHAEL CHARLES DORISE,
Petitioner-Appellant,
v.
ANDRE MATEVOUSIAN, AKA Andre
Mantevousian,
Respondent-Appellee.
No. 16-15822
D.C. No.
1:15-cv-01197-DAD-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted May 17, 2017
San Francisco, California
Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and MCCALLA,**
District Judge.
Appellant Mikhael C. Dorise is a federal prisoner appealing from the district
court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. Dorise
specifically argues that he properly evoked the “escape hatch” provision under
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
FILED
JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 2255(e) in his § 2241 petition because his prior convictions for robbery under
Texas Penal Code § 29.02 were not “crimes of violence” for the purposes of the
career offender guideline, U.S.S.G. § 4B1.2. The district court concluded that
Dorise failed to demonstrate actual innocence of a sentencing enhancement, and
denied the petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and
we affirm.
When § 2255 is “inadequate or ineffective to test the legality of [a
prisoner’s] detention,” a petitioner may file a § 2241 petition. 28 U.S.C. § 2255(e).
“[A] § 2241 petition is available under the ‘escape hatch’ of § 2255 when a
petitioner (1) makes a claim of actual innocence, and (2) has not had an
‘unobstructed procedural shot’ at presenting that claim.” Stephens v. Herrera, 464
F.3d 895, 898 (9th Cir. 2006) (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th
Cir. 2003)). The first element is dispositive here.
Dorise argues he is “actually innocent” of his career offender status because
his two predicate robbery offenses constituted “crimes of violence” under the
Guidelines’ residual clause in § 4B1.2(a)(2), which he alleges is unconstitutionally
vague. Dorise relies on the Supreme Court’s decisions in Johnson v. United States,
135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016), which
retroactively invalidated the residual clause of the Armed Career Criminal Act as
unconstitutionally vague. Dorise also relies on the Supreme Court’s recent holding

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in Beckles v. United States, 137 S. Ct. 886, 897(2017), that an advisory sentencing
enhancement under the residual clause in § 4B1.2(a)(2) is not void for vagueness.
Although this court found “a petitioner generally cannot assert a cognizable
claim of actual innocence of a noncapital sentencing enhancement[,]” it left open
“the question whether a petitioner may ever be actually innocent of a noncapital
sentence for the purpose of qualifying for the escape hatch.” Marrero v. Ives, 682
F.3d 1190, 1193 (9th Cir. 2012); see also Ezell v. United States, 778 F.3d 762, 765
n.3 (9th Cir. 2015).
Even if we decided that the actual innocence exception applies to noncapital
sentencing cases, Dorise’s claim is not cognizable for the purpose of qualifying to
bring a § 2241 petition under the escape hatch. Although presented as an actual
innocence claim, Dorise’s real argument is that he was incorrectly categorized as a
career offender under U.S.S.G. § 4B1.1. As in Marrero, this claim is purely legal
and “has nothing to do with factual innocence.” 682 F.3d at 1193. Dorise has not
raised a constitutional claim, see, e.g., Gilbert v. United States, 640 F.3d 1293,
1321 (11th Cir. 2011) (“Gilbert’s claim that a sentencing guidelines was
misapplied to him is not a constitutional claim.”), and even without the career
offender enhancement, he was statutorily eligible for the sentence he received. See
18 U.S.C. §§ 922(g), 924(a)(2), 924(c)(1)(A)(i)–(ii) (2004); 18 U.S.C. § 2113 (a),
(d) (2002). Therefore, Dorise cannot bring his claim in a § 2241 petition.

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We agree with the district court that Dorise has not established actual
innocence of a sentencing enhancement.
AFFIRMED.1
1 The Court GRANTS Dorise’s motion for judicial notice of federal court records
in United States v. Dorise, including his criminal and related appellate records.

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