United States District Court, D. Kansas
KENNETH L. KIRKLAND, Petitioner,
N. C. ENGLISH, Warden, USP-Leavenworth, Respondent.
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
sentence enhancement under 21 U.S.C. § 851. 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
27, 2018, Petitioner filed the instant petition under 28
U.S.C. § 2241, claiming that his prior conviction
enhancement under 21 U.S.C. § 851 is null and void in
light of Descamps v. United States, 133 S.Ct. 2276
(2013) and Mathis v. United States, 136 S.Ct. 2243
(2016). Petitioner invokes the savings clause of 28 U.S.C.
§ 2255(e), arguing that § 2255 is inadequate or
ineffective to test the legality of his detention.
factual background for this case is set out in detail in the
Court's March 26, 2018 Memorandum and Order dismissing
Petitioner's prior § 2241 action. See Kirkland
v. Maye, No. 18-cv-03058-JWL, Doc. 3 (D. Kan. March 26,
2018) (attached). In Petitioner's prior § 2241
action, he also argued that his sentence enhancement is
“null and void” in light of the Supreme Court
decisions in Descamps and Mathis.
Petitioner argued that: Descamps and Mathis
are new interpretations of statutory law, and that he met the
savings clause tests set forth in other circuits; and that he
was “actually innocent” of the sentence
makes the same arguments in his instant § 2241 petition,
alleging that he is actually innocent of the sentence
enhancement and arguing that he meets the savings clause test
utilized in the Sixth Circuit, citing Hill v.
Masters, 836 F.3d 591, 594-95 (6th Cir. 2016) and
Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir.
2012). Now, however, Petitioner argues that the savings
clause test can also be met with a finding of “a
fundamental miscarriage of justice, ” citing In re
Davenport, 147 F.3d 605 (7th Cir. 1998).
Court's Memorandum and Order entered in Petitioner's
prior case set forth in detail why he failed to meet the
Tenth Circuit's savings clause test as set forth in
Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011).
The Court noted that a showing of actual innocence is
irrelevant under the Prost framework. In
Prost, the Tenth Circuit rejected the
“erroneous circuit foreclosure test” as follows:
Even among those cases that have employed the
erroneous circuit foreclosure test, moreover, none has
addressed the textual and structural clues we've
discussed. For example, the Seventh Circuit in In re
Davenport seemed to rely primarily on
“practical” considerations, see infra n.
12, and did not consider that the language of the savings
clause asks whether § 2255 is adequate to test
the legality of a prisoner's detention, suggesting a
concern with assuring some mechanism for assessing
the prisoner's claim. The court likewise did not examine
how the savings clause's meaning is affected by
Congress's inclusion in § 2255(h) of two specific
kinds of claims that may be brought in a second or successive
collateral attack. It did not discuss how § 2255(f) fits
into this picture, or how the saving clause coexists with the
larger statutory structure limiting many otherwise successful
successive petitions. And, notably too in light of more
recent events, it is unclear whether even the Seventh Circuit
itself continues to ascribe to the erroneous circuit
foreclosure test. See Morales v. Bezy, 499 F.3d 668,
672-73 (7th Cir. 2007); id. at 674 (Rovner, J.,
dissenting) (questioning whether, in light of the
majority's analysis, a petitioner in the Seventh Circuit
would still have to establish circuit foreclosure to access
§ 2241 via the savings clause).
Prost, 636 F.3d at 592-93; see also Brown v.
Berkebile, 572 Fed.Appx. 605, 608-09 (10th Cir. 2014)
(unpublished) (rejecting argument that the court's
failure to follow the other circuits in Prost
violated the Supreme Court's “fundamental
miscarriage of justice” exception which “allows
courts discretion to grant federal habeas relief in spite of
procedural bars-such as the bar on second and successive
§ 2255 motions-where a constitutional violation
‘has probably resulted in the conviction of one who is
new argument that he meets the savings clause test set forth
in Davenport is unpersuasive for the same reasons
the Court rejected his attempt to utilize the Sixth
Circuit's test-this Court is bound by the Tenth
Circuit's test announced in Prost. See
United States v. Spedalieri, 910 F.2d 707, 709, n.2
(10th Cir. 1990) (“A district court must follow the
precedent of this circuit, regardless of its views concerning
the advantages of the precedent of our sister
circuits.”) (citations omitted); see also
Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 n.6 (10th
Cir. 2017) (“[w]e are bound by the precedent of prior
panels absent en banc reconsideration or a superseding
contrary decision by the Supreme Court.”) (quoting
Barnes v. United States, 776 F.3d 1134, 1147 (10th
petitioner has the burden to show that the remedy under
§2255 is inadequate or ineffective. Hale v.
Fox, 829 F.3d 1162, 1179 (10th Cir. 2016), cert.
denied sub nom. Hale v. Julian, 137 S.Ct. 641 (2017).
For the reasons set forth in this Memorandum and Order and
the Memorandum and Order entered in No. 18-cv-3058-JWL,
Petitioner has failed to meet that burden. The 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 without