NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY KAPONONUIAHOPIL LII, No. 16-15539
Petitioner-Appellant, D.C. No. 1:13-cv-01508-AWI
v.
MEMORANDUM*
PAUL COPENHAVER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Federal prisoner Henry Kapononuiahopil Lii appeals pro se from the district
court’s dismissal of his habeas petition, which the district court characterized as
arising under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. §§ 1291
and 2253. We review de novo the dismissal of a section 2241 petition, see
*
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).
Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006), and we affirm.
Lii’s petition challenged his conviction and sentence, and was thus a
disguised motion under section 2255 and required a certificate of appealability to
proceed on appeal. See Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir.
2011). The district court certified only one issue: whether Lii is entitled to relief
under Welch v. United States, 136 S. Ct. 1257 (2016), with regard to his conviction
under the residual clause of the Armed Career Criminal Act (“ACCA”). We
conclude that Welch is inapplicable because the record shows that Lii was not
sentenced under the ACCA. As to Lii’s remaining claims, we agree with the
district court’s conclusion that Lii does not qualify under section 2255’s “escape
hatch,” and affirm its dismissal of the petition for lack of jurisdiction. See
Stephens, 464 F.3d at 898-99 (stating when a section 2241 petition is available
under section 2255’s “escape hatch” and affirming dismissal for lack of
jurisdiction because the “escape hatch” was not properly invoked).
Appellee’s motion to dismiss is denied.
AFFIRMED.
2 16-15539