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
conviction and sentence for money laundering. The Court has
screened his Petition (Docs. 1, 2) 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
pleaded guilty in 2010 to conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 371, and money laundering, in
violation of 18 U.S.C. § 1957. The court sentenced him
to concurrent terms of five years' imprisonment and ten
years' imprisonment, respectively. The court also ordered
Petitioner to pay approximately $6.4 million in restitution.
Petitioner did not appeal. In 2012, Petitioner sought relief
under 28 U.S.C. § 2255. The district court denied his
motion, and the Eighth Circuit Court of Appeals affirmed.
Dyab v. United States, 546 Fed.Appx. 601 (8th Cir.
2013) (per curiam). Petitioner sought to bring a second
§ 2255 motion under the guise of Federal Rule of Civil
Procedure 60(b). The district court denied the motion on the
ground that it was a second or successive § 2255 motion
that was not authorized by the court of appeals, and the
Eighth Circuit Court of Appeals summarily affirmed.
October 2014, the government moved to amend the restitution
portion of Petitioner's judgment, and Petitioner filed
his third § 2255 motion attacking the new judgment.
Petitioner claimed that the court's entry of an amended
judgment violated his right to due process, and that he is
actually innocent of money laundering. The district court
denied the motion. The court granted a certificate of
appealability, Petitioner appealed, and the Eighth Circuit
Court of Appeals denied the appeal on May 4, 2017. Dyab
v. United States, 855 F.3d 919 (8th Cir. 2017). The
Eighth Circuit found that the district court's order
amending Petitioner's judgment did not result in a new
sentence or judgment that would permit Petitioner to file a
successive § 2255 motion. Id. at 923-24.
Petitioner filed a petition for writ of certiorari which was
denied on October 2, 2017. Dyab v. United States,
138 S.Ct. 239 (2017).
November 30, 2018, Petitioner filed the instant petition
under 28 U.S.C. § 2241, arguing that his conviction and
sentence for money laundering in violation of 18 U.S.C.
§ 1957 is invalid under United States v.
Santos, 553 U.S. 507 (2008). 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).
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. 2011)). 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 §
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).
argues that § 2255 is inadequate or ineffective to test
the legality of his detention, conviction and sentence on the
basis of Santos, “because the argument was
unavailable to his crime of conviction.” (Doc. 2, at
8.) Although Santos was decided in 2008 and
Petitioner was sentenced in 2011, Petitioner claims that he
was “completely and utterly precluded from prevailing
on an argument” based on Santos because
“[f]rom the moment [his] criminal case began, Eighth
Circuit precedent foreclosed his claims as well as its sister
circuit's because the Santos interpretation was
evolving.” Id. at 9. Petitioner also
acknowledges that he raised the Santos argument in
the § 2255 motion he filed in 2014. Id.
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 (stating
that “the fact that Mr. Prost or his counsel may not
have thought of a Santos-type argument
earlier doesn't speak to the relevant question whether
§ 2255 itself provided him with an adequate and
effective remedial mechanism for testing such an
argument”). “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 ...