Raines v. Fox

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION for 5 Report and Recommendation. Report and Recommendation is hereby ADOPTED to the extent it recommendsdismissal of the instant petition. In light of Petitioners request that the Court transfer the acti on to the Fifth Circuit Court of Appeals only if it concludes that Mathis is to be applied retroactively, the Court declines to transfer this action as recommended in the Report and Recommendation. Signed by Honorable David L. Russell on 10/26/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL RAINES,
Petitioner,
v.
JOHN B. FOX, Warden, FCI
El Reno,
Respondent.

)
)
)
)
)
)
)
)
)
)

CIV-16-1036-R

ORDER
Petitioner filed this action pursuant to 28 U.S.C. § 2241, seeking a writ of habeas
corpus. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States
Magistrate Judge Shon T. Erwin for preliminary review. On September 27, 2016, Judge
Erwin issued a Report and Recommendation wherein he recommended that the Court
characterize the petition as a Motion to Vacate filed pursuant to 28 U.S.C. § 2255, and that
it either be transferred to the Fifth Circuit Court of Appeals to permit that Court to
determine whether Petitioner should be granted leave to file a second or successive petition,
or that the petition be dismissed. Judge Erwin noted that the instant petition challenges the
sentence received by Petitioner in a case pursued by the United States in the Eastern District
of Texas based on his career offender status and seeks to raise a challenge under Johnson
v. United States, --- U.S. ---, 135 S.Ct. 2551, 2563 (2015) and Mathis v. United States, --U.S. ---, 136 S.Ct. 2243, 2250-57 (2016). Judge Erwin concluded the relief sought is not
properly pursued under 28 U.S.C. § 2255, and that either transfer or dismissal is
appropriate. The matter is currently before the Court on Petitioner’s timely objection to the

Report and Recommendation, which gives rise to the Court’s obligation to undertake a de
novo review of those portions of the Report and Recommendation to which Petitioner
makes specific objection. Having conducted this de novo review, the Court finds as
follows.
Petitioner begins his objection by noting that he was not eligible to rely on Johnson
until the Supreme Court’s June 2016 decision in Mathis. He contends, however, that by the
time the decision in Mathis was issued, the one-year limitations period set forth in § 2255(f)
had expired for any Johnson claim he might have. He requests transfer to the Fifth Circuit
if the Court concludes that Mathis is a new rule of constitutional law. If the Court concludes
otherwise, however, he contends that this Court has jurisdiction over his petition under §
2241, because he could not have brought a timely Johnson claim in light of the later
decision in Mathis. The Court declines to determine whether Mathis is a new rule of
constitutional law applicable retroactively to Mr. Raines so as to render one or more of his
post-conviction claims timely.1 Furthermore, the fact that Petitioner may have missed the
window of opportunity for pursuing a Johnson claim in the appropriate forum is not a basis
for invoking the savings clause of 28 U.S.C. § 2255(e), which permits a prisoner to
challenge the validity of his sentence pursuant to 28 U.S.C. § 2241 where § 2255 is
“inadequate or ineffective to test the legality of his detention.” Abernathy v. Wandes, 713

  The Court notes that none of the Courts that have considered the issue have concluded that that Mathis announced
a new rule of constitutional law. See Dimott v. United States, 2016 WL 6068114 (D.Me. Oct. 14, 2016); Crawford v.
United States, 2016 WL 5402967 (E.D.Mi. Sept. 28, 2016); In re Lott, --- F.3d ---, 2016 WL 5349745 (5th Cir.
2016); Henderson v. United States, --- F.Supp.3d –, 2016 WL 4987898 (W.D.Mo. 2016); Dawkins v. United States,
No. 16-2683, ___ F.3d ____, 2016 WL 3854238, at *2 (7th Cir. July 15, 2016); King v. United States, No. 1622261-CIV, 2016 WL 4487785, at *9 (S.D. Fla. Aug. 24, 2016).

1

2

F.3d 538, 547 (10th Cir. 2013). As noted by the court in Hale v. Fox, 829 F.3d 1162, 1171
(2016), procedural default of a claim or application of the statute of limitations does not
render a § 2255 motion inadequate or ineffective. See also Prost v, Anderson, 636 F.3d 578
(10th Cir. 2011). Furthermore, Petitioner bears the burden of establishing that the savings
clause set forth in § 2255(e) is applicable, and he has failed to meet his burden. For the
reasons set forth in the Report and Recommendation, the Court hereby rejects Petitioner’s
contention that he could not have earlier challenged application of the career offender
enhancement.
The Report and Recommendation is hereby ADOPTED to the extent it recommends
dismissal of the instant petition. In light of Petitioner’s request that the Court transfer the
action to the Fifth Circuit Court of Appeals only if it concludes that Mathis is to be applied
retroactively, the Court declines to transfer this action as recommended in the Report and
Recommendation.
IT IS SO ORDERED this 26th day of October, 2016.

3