Kirkland v. Maye

Filing 3

MEMORANDUM AND ORDER ENTERED: The petition is dismissed without prejudice. Signed by District Judge John W. Lungstrum on 03/26/18. Mailed to pro se party Kenneth L. Kirkland by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH L. KIRKLAND,
Petitioner,
v.

CASE NO. 18-3058-JWL

CLAUDE MAYE, Warden,
USP-Leavenworth,
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 under 21 U.S.C. § 851. 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
On April 30, 2008, following a jury trial, Petitioner was convicted of possession with intent
to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). United
States v. Kirkland, Case No. 3:07-cr-30137-MJR-DGW (S.D. Ill.). Prior to trial, the Government
gave notice of its intent to seek an enhanced sentence, pursuant to 21 U.S.C. § 851, based upon a
prior conviction in Missouri for Trafficking in the Second Degree. On September 19, 2008, he
was sentenced to 240 months’ imprisonment—the mandatory minimum for the offense—and ten
years’ supervised release. Id. at Doc. 74. Petitioner appealed, arguing that: (1) he was held for an
unreasonable amount of time prior to being brought before a magistrate judge; and (2) the district
court erred in failing to suppress his confession. Petitioner’s conviction was affirmed by the
Seventh Circuit on June 1, 2009. United States v. Kirkland, 567 F.3d 316 (7th Cir. 2009).
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Petitioner filed a Petition for Writ of Certiorari with the United States Supreme Court, which was
denied on July 11, 2010.
On October 4, 2011, Petitioner filed a pro se motion seeking to reduce his sentence based
on the United States Sentencing Commission’s promulgation of amendments to the Sentencing
Guidelines, following passage of the Fair Sentencing Act of 2010, Pub. L. No. 111-120, 124 Stat.
2372 (2010). United States v. Kirkland, Case No. 3:07-cr-30137-MJR-DGW (S.D. Ill.). That
Act required the Guidelines to be brought into conformity with substantive provision reducing the
criminal penalties for certain crack cocaine offenses. The court denied Petitioner’s motion for
sentence reduction based on Amendment 750, finding that:
Defendant was subject to a statutory mandatory minimum term of
240 months in prison; consequently, his guideline range cannot be
lowered by the retroactive amendment in question. Relief under
Section 3582 is not available when a retroactive amendment “does
not have the effect of lowering the defendant’s applicable guideline
range.”
Id. at Doc. 117 (S.D. Ill. Feb. 6, 2012) (citing United States v. Taylor, 627 F.3d 674, 676 (7th Cir.
2010).
On January 7, 2015, Petitioner filed a pro se motion, seeking a reduction under
Amendment 782. The court denied the motion, finding that Petitioner lacked a meritorious basis
for seeking relief under 18 U.S.C. § 3582(c) and Amendment 782 to the Sentencing Guidelines
due to the preclusive effect of Petitioner’s mandatory minimum sentence. Id. at Doc. 127 (S.D.
Ill. May 14, 2015).
Petitioner filed a § 2255 motion on November 29, 2010. Kirkland v. United States,
No. 10-cv-00958-MJR (S.D. Ill.) (Doc. 1.). On June 10, 2011, Petitioner filed a motion to amend
and set aside his original § 2255 motion. Id. at Doc. 14. The court granted Petitioner’s motion,
and ordered him to re-file his § 2255 motion by July 15, 2013, and to “include all claims he wishes
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the Court to consider.” Id. at Doc. 16. Petitioner filed his Amended § 2255 motion on July 15,
2013. Id. at Doc. 17. On July 19, 2013, the court ordered Petitioner to file another § 2255
motion by August 9, 2013, to ensure that Petitioner had included all grounds for relief. Id. at
Doc. 18. Because Petitioner failed to submit a new amended § 2255 motion, the court set a
briefing schedule as to Petitioner’s previously-submitted amended § 2255 petition at Doc. 17. In
that petition, Petitioner alleged five grounds for relief, all based on ineffective assistance of
counsel. The court denied the § 2255 motion on March 4, 2014. Id. at Doc. 23.
Petitioner filed a Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582 and the
Retroactive Amendments 782, USSG, on April 10, 2017. United States v. Kirkland, Case
No. 3:07-cr-30137-MJR-DGW (S.D. Ill.) (Doc. 128). On April 12, 2017, the court denied the
motion as moot “because the Court already considered the precise relief sought” and denied relief
in its prior order. Id. at Doc. 129.
On March 5, 2018, Petitioner filed the instant petition under 28 U.S.C. § 2241, claiming
that his prior conviction enhancement under 21 U.S.C. § 851 is null and void in light of Descamps
v. United States, 133 S. Ct. 2276 (2013) and Mathis v. United States, 136 S. Ct. 2243 (2016).
(Doc. 1, at 6–7). 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.

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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).
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 v. Anderson, 636 F.3d 578, 589 (10th Cir. 2011). “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).
Petitioner argues that his sentence enhancement is “null and void” in light of the Supreme
Court decisions in Descamps and Mathis. 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

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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, 636 F.3d at 581).
It does not appear that Petitioner sought authorization to file a second or successive § 2255
motion.

Regardless, 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.

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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).
Petitioner argues that Descamps and Mathis are new interpretations of statutory law, and
that he meets the savings clause tests set forth in other circuits. However, the Tenth Circuit has
addressed 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 decisions he seeks to rely on
were not in existence yet.1 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”).
In addition, § 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);

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The Court notes that Descamps was decided on June 20, 2013, prior to the deadline for Petitioner to file his amended
petition in his original § 2255 motion. See Kirkland v. United States, No. 10-cv-00958-MJR (S.D. Ill.) (Doc. 18.)
The Court expresses no opinion on the applicability of Descamps and 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).

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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.”). Petitioner cites Reyes-Requena,
arguing that his claim “was foreclosed by circuit law at the time when the claim should have been
raised.” However, the Tenth Circuit created a new savings clause test in Prost and declined to
follow the previous test used under Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001). Abernathy, 713 F.3d at 541, 545–46, n.6–7 (10th Cir. 2013). 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).
Petitioner, like the petitioner in Abernathy, argues that he is “actually innocent” of the
sentence enhancement. 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’
. . . [u]nder the Prost framework, a showing of actual innocence is irrelevant.” 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

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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 26th day of March, 2018.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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