United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner in federal custody at
USP-Leavenworth, proceeds pro se. Petitioner challenges his
designation as a career offender. The Court has screened his
Petition (Doc. 1) under Rule 4 of the Rules Governing Habeas
Corpus Cases, foll. 28 U.S.C. § 2254, and dismisses this
action without prejudice for lack of statutory jurisdiction.
was sentenced to 188 months imprisonment in the U.S. District
Court for the Northern District of Texas (Dallas Division) on
March 25, 2011, after pleading guilty to conspiracy to
distribute a controlled substance. Lewis v. United
States, 2013 WL 6869471, at *1 (N.D. Tex. Dec. 30,
2013). Petitioner's case was affirmed on appeal. See
United States v. Lewis, 467 F. App'x 298 (5th Cir.
2012). Petitioner then filed a § 2255 motion, asserting
that he received ineffective assistance of counsel.
Lewis, 2013 WL 6869471. Petitioner's § 2255
motion was denied and Petitioner sought permission to file a
second or successive § 2255 motion in the Fifth Circuit
Court of Appeals, challenging his sentence as a career
offender. Case No. 16-10799 (5th Cir. 2016). The Fifth
Circuit denied the motion, finding that “[o]nly a
decision by the Supreme Court may serve as the basis for
granting authorization, § 2255(h)(2), and Lewis has not
made the requisite showing with respect to Mathis or
Johnson.” Id. at Doc. 00513727534.
Plaintiff again filed a motion for authorization to file a
successive § 2255 motion. Case No. 17-10389 (5th Cir.
2017). The Fifth Circuit denied the motion on May 31, 2017,
noting that Petitioner's claims were repetitive of, or
similar to, claims raised in his previous motion, and warning
Petitioner that future frivolous filings would result in the
imposition of sanctions. Id. at Doc. 00514013884.
Petitioner then filed a motion under Fed.R.Civ.P. 60(b) in
his underlying criminal case, seeking relief again under
Mathis v. United States, 136 S.Ct. 2243 (2016). On
September 19, 2017, the court adopted the magistrate
judge's recommendation and found that the Rule 60(b)
motion should be construed as an unauthorized successive
§ 2255 motion and transferred to the Fifth Circuit.
United States v. Lewis, No. 3:10-cr-40-D (03), 2017
WL 4155279 (N.D. Tex. Sept. 19, 2017). Petitioner then sought
to withdraw the transferred motion. See Case No.
17-10389, Doc. 00514260890.
then filed the instant petition under 28 U.S.C. § 2241.
Petitioner invokes the savings clause of § 2255(e),
arguing that § 2255 is inadequate or ineffective to test
the legality of his detention.
Court must first determine whether § 2241 was the proper
vehicle to bring Petitioner's claims. Because “that
issue impacts the court's statutory jurisdiction, it is a
threshold matter.” Sandlain v. English, 2017
WL 4479370 (10th Cir. Oct. 5, 2017) (unpublished) (finding
that whether Mathis is retroactive goes to the
merits and the court must first decide whether § 2241 is
the proper vehicle to bring the claim) (citing Abernathy
v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013)).
federal prisoner seeking release from allegedly illegal
confinement may file a motion to “vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). A
motion under § 2255 must be filed in the district where
the petitioner was convicted and sentence imposed. Sines
v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010).
Generally, the motion remedy under 28 U.S.C. § 2255
provides “the only means to challenge the validity of a
federal conviction following the conclusion of direct
appeal.” Hale v. Fox, 829 F.3d 1162, 1165
(10th Cir. 2016), cert. denied sub nom. Hale v.
Julian, 137 S.Ct. 641 (2017). However, under the
“savings clause” in § 2255(e), a federal
prisoner may file an application for habeas corpus under 28
U.S.C. § 2241 in the district of confinement if the
petitioner demonstrates that the remedy provided by §
2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e).
seeks relief based on the Fifth Circuit's
post-Mathis overruling of Ford, the
then-controlling precedent that foreclosed the claim he
brought on direct appeal. See United States v.
Tanksley, 848 F.3d 347 (5th Cir.), supplemented
by 854 F.3d 284 (5th Cir. 2017). Petitioner claims that
“as of today” a prior conviction under Section
481.112(a) does not count as “a controlled substance
offense” under the career offender provision of the
Tenth Circuit relied on Prost v. Anderson, 636 F.3d
578 (10th Cir. 2011),  to reject a similar argument in
Sandlain. In Prost, the Tenth Circuit held
that Prost was free to raise and test his argument in his
initial § 2255 motion, despite contrary circuit
authority at the time. The Tenth Circuit held that “it
is the infirmity of the § 2255 remedy itself, not the
failure to use it or to prevail under it, that is
determinative. To invoke the savings clause, there must be
something about the initial § 2255 procedure that
itself is inadequate or ineffective for
testing a challenge to detention.”
Prost, 636 F.3d at 589. The Tenth Circuit noted that
Prost was free to raise his argument in his initial §
2255 motion, and the fact that his argument may have been
foreclosed by erroneous circuit precedent was not enough to
invoke the savings clause of § 2255(e). Id. at
590. “The savings clause doesn't guarantee results,
only process, ” and “the possibility of an
erroneous result-the denial of relief that should have been
granted-does not render the procedural mechanism Congress
provided for bringing that claim (whether it be 28 U.S.C.
§§ 1331, 1332, 2201, 2255, or otherwise) an
inadequate or ineffective remedial vehicle for
testing its merits within the plain meaning of the
savings clause.” Id. (emphasis in original).
petitioner has the burden to show that the remedy under
§2255 is inadequate or ineffective. Hale, 829
F.3d at 1179. Like the petitioners in Sandlain and
Prost, Petitioner has failed to meet that burden.
“[E]ven assuming there was contrary circuit precedent,
nothing prevented him from raising the argument in his
initial § 2255 motion and then challenging any contrary
precedent via en banc or certiorari review.”
Sandlain, 2017 WL 4479370, at *3. The Fifth Circuit,
in denying Petitioner's § 2255 motion, found that
Petitioner had not made a prima facie showing under §
2255(h),  citing In re Lott, 838 F.3d 522,
523 (5th Cir. 2016) (per curiam). If § 2255 could be
deemed “inadequate or ineffective” “any
time a petitioner is barred from raising a meritorious second
or successive challenge to his conviction-subsection (h)
would become a nullity, a ‘meaningless
gesture.'” Prost, 636 F.3d at 586; see
also Hale, 829 F.3d at 1174 (“Because Mr. Hale
cannot satisfy § 2255(h), he cannot, under
Prost, satisfy § 2255(e), and § 2241
review must be denied.”).
also claims that § 2255 is inadequate or ineffective
because he is actually innocent, not of his underlying crime,
but of his career offender sentence enhancement. However, a
petitioner can only establish actual innocence “by
bringing forward new exculpatory evidence, ” and the
“[p]ossible misuse of a prior conviction as a predicate
offense under the sentencing guidelines does not demonstrate
actual innocence.” Sandlain, 2017 WL 4479370,
at *4 (citing Hale, 829 F.3d at 1171).
Court finds that the savings clause of § 2255(e) does
not apply and therefore the Court lacks statutory
jurisdiction. Accordingly, IT IS THEREFORE ORDERED BY
THE COURT that the petition is dismissed