JORGE D. MARTINEZ, Petitioner,
CLAUD MAYES, et al., Respondent.
MEMORANDUM AND ORDER
RICHARD D. ROGERS United States District Judge
This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas. The filing fee has been paid. Mr. Martinez seeks to utilize 28 U.S.C. § 2241 to challenge his federal sentence or conviction in this district in which he is currently confined after having failed to obtain relief from the sentencing court in another federal judicial district as well as on appeal to the Seventh Circuit Court of Appeals and the U.S. Supreme Court. Having considered the petition together with the relevant legal authority, the court finds that petitioner fails to show that his § 2255 remedy was inadequate or ineffective. Accordingly, the court dismisses this petition for lack of jurisdiction.
In 2000, Mr. Martinez was sentenced in the United States District Court for the Northern District of Illinois to 400 months in prison. See United States v. Martinez, 1:97-cr-00659 (N.D. Ill. Sept. 5, 2000). He directly appealed to the Seventh Circuit Court of Appeals, which affirmed on August 6, 2003. He alleges that the United States denied his petition for certiorari in 2004, and that he filed a § 2255 motion that was denied on May 18, 2006.
Petitioner claims he is entitled to relief from his criminal conviction or sentence based upon Alleyne v. United States, ___U.S.___, 133 S.Ct. 2151 (June 17, 2013). In Alleyne the Court overruled prior Supreme Court case law and held that under the Sixth Amendment:
Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.
Id. at 2155 (citation omitted). Petitioner claims that he would be entitled to relief under Alleyne, save for the fact that it was decided after his initial 2255 motion was filed and denied. However, he acknowledges that he “does not meet the requirements of 2255(h)” for bringing a second and successive § 2255 motion. He contends that because he cannot bring a second and successive § 2255 motion to seek relief based upon Alleyne, his § 2255 remedy is inadequate or ineffective.
28 U.S.C. § 2255(a) provides:
A prisoner in custody under sentence of a (federal) court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States . ., or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Id. Subsection (e) of Section 2255 provides:
An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him .... unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
Id. The Tenth Circuit has explained the import of these provisions:
Following AEDPA’s enactment, federal prisoners who are barred from bringing second or successive § 2255 motions may still be able to petition for habeas relief under § 2241 through the mechanism of § 2255(e)’s savings clause. “To fall within the ambit of [the] savings clause and so proceed to § 2241, a prisoner must show that ‘the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.’” Prost, 636 F.3d at 581 (second alteration in original) (quoting 28 U.S.C. § 2255(e)). Section 2255, however, has been found to be “inadequate or ineffective” only in “extremely limited circumstances.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999); see Brace [v. United States, 634 F.3d 1167, ] 1169 [10th Cir. 2011](stating that “§ 2255 will rarely be an inadequate or ineffective remedy to challenge a conviction”). In Prost, we set forth our test: we ask “whether a petitioner’s argument challenging the legality of his detention could have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not resort to the savings clause and § 2241.” 636 F.3d at 584.
It is the petitioner’s burden to show that the § 2255 remedy is inadequate or ineffective. Caravalho, 177 F.3d at 1178; see also Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013)(“It is Mr. Abernathy’s burden to show that he meets § 2255(e)’s savings clause.”).
The habeas corpus remedy under 28 U.S.C. § 2241 is available to a prisoner who is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). However, the § 2241 petition does not ordinarily encompass claims of unlawful detention based on the conviction or sentence of a federal prisoner. The Tenth Circuit has explained the difference between the two statutory provisions. “A 28 U.S.C. § 2255 petition attacks the legality of detention, and must be filed in the district that imposed the sentence.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). By contrast, the § 2241 petition “attacks the execution of a sentence rather than its validity.” McIntosh v. U.S. Parole Com’n, 115 F.3d 809 811–12 (10th Cir. 1997); Bradshaw, 86 F.3d at 166. It has long been held that a § 2241 petition “is not an additional, alternative, or ...