Sandlain v. English
MEMORANDUM AND ORDER ENTERED: Petitioner's motion to proceed in forma pauperis 2 is granted. Petitioner's motion to appoint counsel 3 is denied. This matter is dismissed. Signed by District Judge John W. Lungstrum on 06/23/17. Mailed to pro se party Blake Sandlain by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3103-JWL
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner proceeds pro se, and the Court grants leave to
proceed in forma pauperis. Petitioner challenges his designation as
a career offender.
In April 2014, petitioner was indicted in the U.S. District Court
for the Eastern District of Michigan for being a felon in possession
of a firearm; possession with intent to distribute a controlled
substance; maintaining drug-involved premises; and using a firearm
in furtherance of a drug trafficking crime. He entered a plea agreement
and was sentenced to a term of 180 months with a three year term of
supervised release. He did not appeal.
In August 2015, petitioner moved to vacate his sentence under
28 U.S.C. § 2255. The district court dismissed the motion, but on
appeal, the U.S. Court of Appeals for the Sixth Circuit denied a
certificate of appealability and his motion to appoint counsel but
found that petitioner’s classification as a career offender might be
The petition shows the petitioner’s surname is Sandlain, and the Court uses that
name in this document. The Court notes that the financial records maintained by the
Bureau of Prisons reflect the petitioner’s name is Blake Sandlin.
affected by Johnson v. United States, 135 S.Ct. 2551 (2015).
In June 2016, the Sixth Circuit authorized petitioner to file
a second motion based on Johnson. In that motion, petitioner
challenged his career offender designation, arguing that the residual
clause in the United States Sentencing Guidelines on which his
designation rests was unconstitutionally vague.2 The sentencing court
rejected that argument. Sandlain v. United States, 2017 WL 2002005
(E.D. Mich. May 12, 2017).3
In the present action, petitioner seeks relief from the career
offender designation under Mathis v. United States, 136 S.Ct. 2243
(2016). The Court has reviewed the matter, declines to appoint
counsel, and concludes the petition must be dismissed.
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, upon a showing that the remedy under § 2255 is
“inadequate or ineffective to test the legality of his detention”,
a federal prisoner may attack his federal conviction by bringing a
petition for habeas corpus under 28 U.S.C. § 2241 under the savings
clause of § 2255(e).
A court determines whether the remedy under § 2255 is “inadequate
or ineffective” by deciding whether a petitioner’s claim could have
been presented in an initial § 2255 motion. If so, the the petitioner
may not proceed under the savings clause. Prost v. Anderson, 636 F.3d
In that action, petitioner apparently relief on Johnson and Beckles v. United
States, 137 S.Ct. 886 (2017).
A post-judgment motion is pending in that action.
578, 584 (10th Cir. 2011).
The petitioner has the burden to show that the remedy under §2255
is inadequate or ineffective. Hale, 829 F.3d at 1179. As noted,
petitioner seeks the removal of the career offender designation and
resentencing. However, his reliance on Mathis is misplaced. The United
States Supreme Court has not held that its decision in Mathis applies
retroactively to cases on collateral review. Both the Tenth Circuit,
in which he currently is confined, and district courts in the Sixth
Circuit, in which he was convicted, have determined that the Mathis
decision did not announce a new rule of constitutional law.
See United States v. Taylor, 672 Fed.Appx. 860, 2016 WL 7093905, at
*4 (10th Cir. Dec. 6, 2016)(Mathis did not announce new substantive
rule and does not apply retroactively on collateral review); Atkinson
v. United States, 2017 WL 1227876 , at *2(W.D. Mich. Apr. 4, 2017)(“the
Supreme Court has not held that Mathis is a new rule made retroactive
on collateral review”); Brodie v. United States, 2017 WL 2540570 at
*2 (W.D. Ky. June 9, 2017)(“the Supreme Court’s decision in Mathis
did not create a new rule of law which applies retroactively to cases
on collateral review”).
Because the Mathis decision has not been held to apply
retroactively, the Court concludes that petitioner may not proceed
in habeas corpus under § 2241 and that the transfer of this matter
to the district of petitioner’s conviction is not warranted.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
proceed in forma pauperis (Doc. #2) is granted.
IT IS FURTHER ORDERED petitioner’s motion to appoint counsel
(Doc. #3) is denied.
IT IS FURTHER ORDERED this matter is dismissed.
IT IS SO ORDERED.
This 23rd day of June, 2017, at Kansas City, Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge
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