Guerrero v. English

Filing 3

MEMORANDUM AND ORDER ENTERED: The petition is dismissed without prejudice. Signed by District Judge John W. Lungstrum on 04/09/18. Mailed to pro se party Manuel Guerrero by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MANUEL GUERRERO,
Petitioner,
v.

CASE NO. 18-3068-JWL

N.C. ENGLISH, 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
designation 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.
Background
On September 3, 2010, Petitioner was sentenced in the Northern District of Texas to 235
months’ imprisonment following his guilty plea conviction for conspiracy to possess 100
kilograms or more of marijuana with intent to distribute.

United States v. Guerrero,

No. 10-cr-00067-A-1 (N.D. Tex.) (Doc. 37). Petitioner appealed, claiming “that the district court
erred in applying the career offender enhancement because one of his Texas state convictions on
which the district court relied was obtained in violation of his Sixth Amendment right to counsel.”
United States v. Guerrero, 460 F. App’x 424 (5th Cir. 2012). The Fifth Circuit affirmed the
judgment of the district court. Id. at 426.
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Petitioner filed a § 2255 motion on May 2, 2013, claiming ineffective assistance of counsel
(which he later withdrew), and that the court’s determination of his career offender status, and
subsequent enhancement under section 4B1.1 of the United States Sentencing Guidelines, violated
his Fifth Amendment rights. Guerrero v. United States, No. 4:13-cv-00367-A (N.D. Tex.). The
district court denied the motion on June 28, 2013, finding no basis for his claim because the
conviction Petitioner was challenging had not been overturned or vacated. Id. at Doc. 11. On
June 19, 2017, Petitioner filed a second § 2255 motion in the district court, seeking to vacate his
career offender enhancement based on the decisions in Mathis v. United States, 136 S. Ct. 2243
(2016), United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), and United States v. Tanksley, 848
F.3d 347 (5th Cir.), supplemented by 854 F.3d 284 (5th Cir. 2017). Guerrero v. United States,
No. 4:17-cv-00498-A (N.D. Tex.) (Doc. 1). On June 20, 2017, the district court dismissed the
motion as a second or successive § 2255 motion filed without leave from the Fifth Circuit. Id. at
Doc. 4. On July 24, 2017, Petitioner filed another motion which the district court denied as
another second or successive motion under § 2255.

Guerrero v. United States,

No. 17-cv-00604-A (N.D. Tex.) (Doc. 4).
Petitioner filed a Motion to Correct Plain Error in his criminal case on August 21, 2017,
arguing for relief under Mathis, Hinkle, and Tanksley, which the district court denied on
August 22, 2017. United States v. Guerrero, 10-cr-00067-A-1 (N.D. Tex.) (Docs. 66, 67). In
denying relief, the district court noted that the motion was another attempt to seek relief without
leave of the Fifth Circuit. Id. at Doc. 67. The district court further noted that Mathis “has not
been made retroactive.” Id. (citing In re Lott, 838 F.3d 522, 523 (5th Cir. 2016)).
On March 21, 2018, Petitioner filed the instant petition under 28 U.S.C. § 2241, again
arguing for relief under Mathis, Hinkle, and Tanksley. Petitioner invokes the savings clause of

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§ 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).
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

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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 he is entitled to relief under Mathis, Hinkle, and Tanksley. 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, 636 F.3d at 581).
It does not appear that Petitioner sought authorization from the Fifth Circuit to file a second
or successive § 2255 motion, and Petitioner does not argue that the cases he relies on are “a new
rule of constitutional law.”

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

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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.”).
Petitioner argues that the decision in Mathis is a new interpretation of statutory law. 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).
Petitioner argues that he meets the savings clause tests adopted in other circuits.
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.1 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 . . .
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Petitioner urges this Court to disregard or “overrule” Prost. This Court is bound by Tenth Circuit precedent.
United States v. Spedalieri, 910 F.2d 707, 709, n.2 (10th Cir. 1990) (“A district court must follow the precedent of this
circuit, regardless of its views concerning the advantages of the precedent of our sister circuits.”) (citations omitted);
see also Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 n.6 (10th Cir. 2017) (“[w]e are bound by the precedent of
prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”) (quoting
Barnes v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015)).

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§ 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.2 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”).
Petitioner argues that prior to the decision in Tanksley, his argument was foreclosed by the
Fifth Circuit’s decision in United States v. Ford, 509 F.3d 714 (5th Cir. 2007). However, § 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.”). 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

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).
2

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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
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.

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IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 9th day of April, 2018.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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