United States District Court, D. Kansas
EWELL D. NASH, Petitioner,
UNITED STATES OF AMERICA, 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. 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.
convicted Petitioner of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). See United States v. Nash, 627 F.3d 693,
694 (8th Cir. 2010), cert. denied 563 U.S. 927
(2011). The district court determined that Petitioner had
three prior convictions that were predicate offenses under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), and designated Petitioner an armed career
criminal subject to the mandatory fifteen-year sentence of 18
U.S.C. § 924(e). Id. at 695. The district court
sentenced Petitioner to 260 months' imprisonment. The
Eighth Circuit Court of Appeals affirmed, and the petition
for writ of certiorari was denied. Id. Petitioner
filed a motion to vacate the judgment pursuant to 18 U.S.C.
§ 2255. Petitioner's motion under § 2255 and
his application for leave to file a second or (JNE/SRN),
Civil No. 16-2697 (JNE), 2016 WL 11164802 (D. Minn. Nov. 4,
December 10, 2018, Petitioner filed the instant petition
under 28 U.S.C. § 2241, arguing that his prior
convictions do not qualify him for the sentence enhancement
in light of the decision in Mathis v. United States,
136 S.Ct. 2243 (2016), thus entitling him to resentencing
without the enhancement. Petitioner invokes the savings
clause of § 2255(e), arguing that § 2255 is
inadequate or ineffective to test the legality of his
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WL 4479370 (10th Cir. Oct. 5, 2017) (unpublished) (finding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).
argues that he is entitled to relief based on
Mathis, and that the decision was decided after his
appeal and initial § 2255 motion. 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 v. Anderson, 636 F.3d 578, 581 (10th Cir.
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.”).
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.
denied 134 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 has been found to be “inadequate or
ineffective” only in “extremely limited
circumstances.” Id. (citations omitted).
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, 636 F.3d at 589. “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).
Court is bound by Tenth Circuit precedent which addresses the
question of “whether a new Supreme Court decision
interpreting a statute that may undo a prisoner's
conviction renders the prisoner's initial § 2255
motion ‘inadequate or ineffective.'”
Haskell, 510 Fed.Appx. at 744. The Tenth Circuit
answered the question in the negative in Prost,
holding that if “a petitioner's argument
challenging the legality of his detention could have been
tested in an initial § 2255 motion[, ] . . . then the
petitioner may not resort to . . . § 2241.”
Prost, 636 F.3d at 584.
about the procedure of Petitioner's prior § 2255
motion prevented him from making this same argument despite
the fact that the Supreme Court decision he seeks to rely on
was not in existence yet. The Tenth Circuit has concluded that
although a petitioner may have benefitted from a cite to a
Supreme Court decision announced after his § 2255
motion, this is not reason enough to find the original §
2255 motion “inadequate or ineffective.” See
Prost, 636 F.3d at 589; Haskell, 510 Fed.Appx.
at 745; Sand ...