Blake v. United States of America
ORDER ADOPTING REPORT AND RECOMMENDATIONS; granting 2 motion to supplement; denying 3 application to proceed without prepaying fees or costs; denying 4 motion to appoint counsel; denying 6 motion to supplement; dismissing 1 petition without prejudice for lack of jurisdiction. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on 6/20/2017. (ECW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 17‐CV‐1108 (PJS/DTS)
UNITED STATES OF AMERICA,
Lamar Blake, pro se.
This matter is before the Court on the Report and Recommendation (“R&R”) of
Magistrate Judge David T. Schultz. Judge Schultz recommends dismissing petitioner
Lamar Blake’s 28 U.S.C. § 2241 petition for lack of jurisdiction. The Court has
conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on
that review, the Court adopts the R&R.
Blake did not object to Judge Schultz’s R&R, but he has moved to supplement his
petition.1 Specifically, Blake seeks to add a claim under Mathis v. United States, 136 S. Ct.
2243 (2016), contending that his Guidelines range was incorrectly calculated because he
was erroneously subjected to the career‐offender enhancement. Mathis, however, does
not represent a change in the law; instead, “its decision was dictated by decades of prior
This is Blake’s second motion to supplement; Judge Schultz recommends
granting the first motion.
precedent.” See United States v. Taylor, 672 F. App’x 860, 864 (10th Cir. 2016). Nothing
prevented Blake from making Mathis‐type arguments at an earlier stage in his criminal
case or as part of his motion under 28 U.S.C. § 2255. Because Blake’s proposed
supplement does not establish that his remedy under § 2255 “is inadequate or
ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e), it is denied as futile.
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court ADOPTS the R&R [ECF No. 5]. Accordingly, IT IS HEREBY ORDERED
Petitioner’s motion to supplement [ECF No. 2] is GRANTED.
Petitioner’s 28 U.S.C. § 2241 petition [ECF No. 1], as supplemented by ECF
No. 2, is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
Petitioner’s application to proceed in forma pauperis [ECF No. 3] is
Petitioner’s motion to appoint counsel [ECF No. 4] is DENIED.
Petitioner’s second motion to supplement [ECF No. 6] is DENIED as futile.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: June 20, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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