United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
matter is a pro se petition for habeas corpus filed under 28
U.S.C. § 2241. Petitioner is in federal custody at
USP-Leavenworth. Petitioner challenges his sentencing 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.
“pled guilty pursuant to a plea agreement to possession
with intent to distribute fifty grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1)
(2006).” United States v. Jones, No. 11-4130,
2011 WL 4525964, 448 Fed.Appx. 354, 355 (4th Cir. Sept. 30,
2011). Petitioner appealed his conviction and sentence, and
the Fourth Circuit dismissed the appeal in part, finding that
the sentencing issues Petitioner sought to raise on appeal
are barred by the terms of his waiver of appellate rights.
Id. at 355-56. The Fourth Circuit affirmed
Petitioner's conviction, finding that Petitioner's
plea was knowing and voluntary. Id. at 355.
filed a motion under 28 U.S.C. § 2255, contending that
he was improperly sentenced as a career offender, in light of
the Fourth Circuit's holding in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011). Jones v.
United States, Nos. 5:10-CR-00074-F-1, 5:11-CR-00686-F,
2013 WL 4828558, at *1 (E.D. N.C. Sept. 10, 2013). The court
found that the waiver in Petitioner's plea agreement was
knowing and voluntary, and that he waived the right to pursue
his claim. Id. at *2. The court denied a certificate
of appealability. Id. at *4. Petitioner appealed,
and the Fourth Circuit dismissed the appeal, finding that
Petitioner failed to make the requisite showing for a
certificate of appealability. United States v.
Jones, No. 13-7743, 565 Fed.Appx. 202 (4th Cir. April 7,
2014). On November 3, 2014, the Supreme Court denied a
petition for writ of certiorari. Jones v. United
States, 135 S.Ct. 462 (2014).
district court dismissed a subsequent § 2255 motion as
successive but unauthorized and treated Petitioner's
Fed.R.Civ.P. 60(b) motion as a successive § 2255 motion
and dismissed it on the same basis. See United States v.
Jones, 616 Fed.Appx. 98 (4th Cir. Sept. 23, 2015).
Petitioner appealed, and the Fourth Circuit held that
Petitioner failed to demonstrate that the district
court's ruling that he lacked authorization to submit a
successive § 2255 motion was debatable and dismissed
this portion of the appeal and denied a certificate of
appealability. Id. at 98. The Fourth Circuit also
found that the district court properly construed
Petitioner's postjudgment motion as a successive §
2255 motion, affirmed the district court's order
dismissing his postjudgment motion for want of jurisdiction,
and denied authorization to file a successive § 2255
motion. Id. at 99; see also United States v.
Jones, 687 Fed.Appx. 240 (4th Cir. April 27, 2017)
(finding that the district court properly dismissed
Petitioner's Fed.R.Civ.P. 60(b) motion as a successive
§ 2255 motion in 5:10-cr-00074-F-1, and denying
authorization to file a successive § 2255 motion).
Petitioner's current § 2241 Petition, he challenges
the validity of his sentence as imposed. Petitioner alleges
that his sentence enhancement is not proper and that he is
not a career offender in light of the Fourth Circuit's
opinion in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). Petitioner invokes the savings clause in
§ 2255(e), alleging that the remedy under § 2255 is
inadequate or ineffective to challenge his conviction or
sentence because his sentence was legal at the time he was
sentenced on January 31, 2011, and current caselaw foreclosed
his arguments. Petitioner argues that Simmons was
decided on August 17, 2011, and it was not until August 21,
2013, that the court made Simmons retroactive in
Miller v. United States, 735 F.3d 141, 147 (4th Cir.
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).
seeks to rely on the decision in Simmons, which is
an intervening judicial interpretation of a statute, and not
a new rule of constitutional law. 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.”).
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.
§ 2255 has been found to be “inadequate or
ineffective” only in “extremely limited
circumstances.” Id. (citations omitted).
“Only in rare instances will § 2255 fail as an
adequate or effective remedy to challenge a conviction or the
sentence imposed.” Sines, 609 F.3d at 1073. A
petitioner does not present one of these rare instances
“simply by asserting his ability to file a § 2255
motion is barred by timing or filing restrictions.”
Crawford v. United States, 650 Fed.Appx. 573, 575
(10th Cir. 2016) (unpublished) (citing Sines, 609
F.3d at 1073; Haynes v. Maye, 529 Fed.Appx. 907, 910
(10th Cir. 2013) (unpublished) (noting fact that § 2255
motion is time-barred doesn't render § 2255 remedy
inadequate or ineffective); Garris v. Lindsay, 794
F.2d 722, 727 (D.C. Cir. 1986) ...