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 (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 statutory
was sentenced to a 360-month term of imprisonment in the
Southern District of Florida on April 30, 1997. United
States v. Sanchez, No. 1:96-cr-00765-DMM-4, Doc. 81
(S.D. Fla. April 30, 1997). Petitioner filed a § 2255
motion on September 20, 2000, (Civil Action #00-3524-CV-DMM)
which was denied on August 14, 2001. Id. at Docs.
121, 127. Petitioner filed a subsequent petition on December
16, 2002, which was construed as a § 2255 motion, deemed
an improper successive petition, and dismissed for lack of
jurisdiction because Petitioner failed to seek authorization
from the Eleventh Circuit. Lema v. United States,
No. 1:02-cv-23580-DMM, Doc. 5 (S.D. Fla. Jan. 17, 2003).
Petitioner filed a third § 2255 motion on March 8, 2016,
(Civil No. 16-CV-20838-DMM) which was denied as successive on
April 19, 2016. United States v. Sanchez, No.
1:96-cr-00765-DMM-4, at Docs. 160, 161. Petitioner filed a
fourth § 2255 motion on July 5, 2017 (Civil No.
17-cv-22498), which was denied on August 29, 2017, as an
unauthorized successive motion. Id. at Docs. 162,
April 4, 2016, Petitioner sought authorization to file a
second or successive § 2255 motion in the Eleventh
Circuit Court of Appeals, which was denied on April 25, 2016.
In re: Pedro Lema, No. 16-11490-D (11th Cir. April
25, 2016). On May 23, 2016, Petitioner again sought
authorization to file a second or successive § 2255
motion in the Eleventh Circuit Court of Appeals, which was
denied on June 16, 2016. In re: Pedro Lema, No.
16-12927-J (11th Cir. June 16, 2016). On April 2, 2018,
Petitioner sought authorization to file a second or
successive § 2255 motion in the Eleventh Circuit Court
of Appeals. In re: Pedro Lema, No. 18-11372-E (11th
Cir.). Petitioner's application was dismissed in part and
denied in part on May 2, 2018. Id.
March 7, 2019, Petitioner filed the instant petition under 28
U.S.C. § 2241, arguing that his prior conviction does
not qualify him for the career offender sentence enhancement
in light of the decisions in Mathis v. United
States, 136 S.Ct. 2243 (2016), United States v.
Hinkle, 832 F.3d 569 (5th Cir. 2016), and Salinas v.
United States, 547 U.S. 188 (2006). Petitioner argues
that based upon statutory interpretation cases from the
United States Supreme Court that were decided after his first
§ 2255 motion, his prior conviction is no longer a
“controlled substance offense, ” and therefore he
is being illegally detained. Petitioner further argues that
he is actually innocent of his career offender sentence
because his prior drug offense can no longer be considered a
“controlled substance offense.” Petitioner asks
the Court to vacate his sentence and order resentencing
without the career offender 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. Petitioner argues that
he is entitled to relief due to a new interpretation of
statutory law that is made retroactive, citing
Mathis and Hinkle. 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.
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 § 2255(h).
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.”).
acknowledges that the decision in Mathis is a new
interpretation of statutory law. (Doc. 2, at 15.) 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.
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 (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 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 meets the savings clause tests adopted in
other circuits. (Doc. 2, at 7, 12-13.) Petitioner
acknowledges that there is a split among the circuits
regarding the applicability of the savings clause, and urges
the Court to issue its own interpretation.Id. at
7-8. However, this 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