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.
September 3, 2010, Petitioner was sentenced in the Northern
District of Texas to 235 months' imprisonment following
his guilty plea conviction for conspiracy to possess 100
kilograms or more of marijuana with intent to distribute.
United States v. Guerrero, No. 10-cr-00067-A-1 (N.D.
Tex.) (Doc. 37). Petitioner appealed, claiming “that
the district court erred in applying the career offender
enhancement because one of his Texas state convictions on
which the district court relied was obtained in violation of
his Sixth Amendment right to counsel.” United
States v. Guerrero, 460 Fed.Appx. 424 (5th Cir. 2012).
The Fifth Circuit affirmed the judgment of the district
court. Id. at 426.
filed a § 2255 motion on May 2, 2013, claiming
ineffective assistance of counsel (which he later withdrew),
and that the court's determination of his career offender
status, and subsequent enhancement under section 4B1.1 of the
United States Sentencing Guidelines, violated his Fifth
Amendment rights. Guerrero v. United States, No.
4:13-cv-00367-A (N.D. Tex.). The district court denied the
motion on June 28, 2013, finding no basis for his claim
because the conviction Petitioner was challenging had not
been overturned or vacated. Id. at Doc. 11. On June
19, 2017, Petitioner filed a second § 2255 motion in the
district court, seeking to vacate his career offender
enhancement based on the decisions in Mathis v. United
States, 136 S.Ct. 2243 (2016), United States v.
Hinkle, 832 F.3d 569 (5th Cir. 2016), and United
States v. Tanksley, 848 F.3d 347 (5th Cir.),
supplemented by 854 F.3d 284 (5th Cir. 2017).
Guerrero v. United States, No. 4:17-cv-00498-A (N.D.
Tex.) (Doc. 1). On June 20, 2017, the district court
dismissed the motion as a second or successive § 2255
motion filed without leave from the Fifth Circuit.
Id. at Doc. 4. On July 24, 2017, Petitioner filed
another motion which the district court denied as another
second or successive motion under § 2255. Guerrero
v. United States, No. 17-cv-00604-A (N.D. Tex.) (Doc.
filed a Motion to Correct Plain Error in his criminal case on
August 21, 2017, arguing for relief under Mathis,
Hinkle, and Tanksley, which the district
court denied on August 22, 2017. United States v.
Guerrero, 10-cr-00067-A-1 (N.D. Tex.) (Docs. 66, 67). In
denying relief, the district court noted that the motion was
another attempt to seek relief without leave of the Fifth
Circuit. Id. at Doc. 67. The district court further
noted that Mathis “has not been made
retroactive.” Id. (citing In re Lott,
838 F.3d 522, 523 (5th Cir. 2016)).
March 21, 2018, Petitioner filed the instant petition under
28 U.S.C. § 2241, again arguing for relief under
Mathis, Hinkle, and Tanksley.
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).
Tenth Circuit has 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 v. Anderson, 636 F.3d 578,
589 (10th Cir. 2011). “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
argues that he is entitled to relief under Mathis,
Hinkle, and Tanksley. When a petitioner is
denied relief on his first motion under § 2255, he
cannot file a second § 2255 motion unless he can point
to either “newly discovered evidence” or “a
new rule of constitutional law, ” as those terms are
defined in § 2255(h). Haskell v. Daniels, 510
Fed.Appx. 742, 744 (10th Cir. 2013) (unpublished) (citing
Prost, 636 F.3d at 581).
not appear that Petitioner sought authorization from the
Fifth Circuit to file a second or successive § 2255
motion, and Petitioner does not argue that the cases he
relies on are “a new rule of constitutional law.”
Regardless, preclusion from bringing a second motion under
§ 2255(h) does not establish that the remedy in §
2255 is inadequate or ineffective. Changes in relevant law
were anticipated by Congress and are grounds for successive
collateral review only under the carefully-circumscribed
conditions set forth in § 2255(h). The Tenth Circuit has
rejected an argument that the “current inability to
assert the claims in a successive § 2255 motion-due to
the one-year time-bar and the restrictions identified in
§ 2255(h)-demonstrates that the § 2255 remedial
regime is inadequate and ineffective to test the legality of
his detention.” Jones v. Goetz, No. 17-1256,
2017 WL 4534760, at *5 (10th Cir. 2017) (unpublished)
(citations omitted); see also Brown v. Berkebile,
572 Fed.Appx. 605, 608 (10th Cir. 2014) (unpublished)
(finding that petitioner has not attempted to bring a second
§ 2255 motion, and even if he were precluded from doing
so under § 2255(h), that “does not establish the
remedy in § 2255 is inadequate”) (citing
Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir.
1999) and Prost, 636 F.3d at 586). 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.”).
argues that the decision in Mathis is a new
interpretation of statutory law. The AEDPA “did not
provide a remedy for second or successive § 2255 motions
based on intervening judicial interpretations of
statutes.” Abernathy v. Wandes, 713 F.3d 538,
547 (10th Cir. 2013), cert. denied134 S.Ct. 1874
(2014). However, prisoners who are barred from bringing
second or successive § 2255 motions may still be able to
petition for habeas relief under the savings clause in §
2255(e). Id. However, § 2255 ...