Opinion
CASE NO. 18-3292-JWL
12-28-2018
EWELL D. NASH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
This 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.
Background
A jury 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 successive motion to vacate were denied. United States v. Nash, Criminal No. 09-0034 (JNE/SRN), Civil No. 16-2697 (JNE), 2016 WL 11164802 (D. Minn. Nov. 4, 2016).
On 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 detention.
Analysis
The 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 Sandlain v. English, 2017 WL 4479370 (10th Cir. Oct. 5, 2017) (unpublished) (finding that whether Mathis is retroactive goes to the merits and the court must first decide whether § 2241 is the proper vehicle to bring the claim)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)).
A 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 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 F. App'x 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). 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 F. App'x 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.").
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).
The 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).
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 F. App'x 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.
Nothing 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 F. App'x at 745; Sandlain, 2017 WL 4479370, at *3 ("Nor does it matter that Mathis was not in existence at the time he filed his initial § 2255 motion").
The Court expresses no opinion on the applicability of Mathis to Petitioner's claim. See Haskell, 510 F. App'x at 745, n.4; see also Sandlain v. English, No. 17-3152, 2017 WL 4479370, at n.8 (10th Cir. 2017). --------
The Tenth Circuit's new test in Prost also provides that § 2255 is not "inadequate or ineffective" merely because adverse circuit precedent existed at the time. Abernathy, 713 F.3d at 548 (citing Prost, 636 F.3d at 590-93); Sandlain, 2017 WL 4479370, at *3 ("[E]ven assuming there was contrary circuit precedent, nothing prevented him from raising the argument in his initial § 2255 motion and then challenging any contrary precedent via en banc or certiorari review."); see also Lewis v. English, 736 F. App'x 749, 752 (10th Cir. June 5, 2018) (unpublished) (noting that anticipating Mathis and arguing it in the face of conflicting circuit precedent would be an "uphill battle," but petitioner "at least had the opportunity to take this path").
The Tenth Circuit has also rejected the argument that the decision in Prost—rejecting the erroneous circuit foreclosure test—violates equal protection. Brown, 572 F. App'x at 608 ("We reject this argument because a circuit split does not deny Mr. Brown equal protection.") (citations omitted). Petitioner could have made his argument, regardless of the likelihood of success on such an argument, even if it was foreclosed by then-controlling circuit precedent. Abernathy, 713 F.3d at 548. "The savings clause doesn't guarantee results, only process." Id. (quoting Prost, 636 F.3d at 590).
In Abernathy, the Tenth Circuit noted that although other circuits "have adopted somewhat disparate savings clause tests, most requir[ing] a showing of 'actual innocence' before a petitioner can proceed under § 2241. . . . Under the Prost framework, a showing of actual innocence is irrelevant." Abernathy, 713 F.3d at n.7 (citations omitted); see also Sandlain, 2017 WL 4479370, at *4 (finding that petitioner's claim that § 2255 is inadequate or ineffective because he is actually innocent of the career offender enhancement under Mathis, merely restates the argument he could have brought in his initial § 2255 motion, and possible misuse of a prior conviction as a predicate offense under the sentencing guidelines does not demonstrate actual innocence); see also Brown, 572 F. App'x at 608-09 (rejecting argument that petitioner is actually innocent and that the court's failure to follow the other circuits in Prost violated the Supreme Court's "fundamental miscarriage of justice" exception); see also Boose v. Mays, No. 13-3016-RDR, 2014 WL 298604, at *4 (D. Kan. Jan. 28, 2014) ("[I]t has generally been held that § 2255's savings clause cannot be invoked to challenge a sentence enhancement rather than the underlying conviction.") (citations omitted).
The petitioner has the burden to show that the remedy under §2255 is inadequate or ineffective. Hale, 829 F.3d at 1179. 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 prejudice.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 28th day of December, 2018.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE