United States District Court, W.D. Oklahoma
DELMONTE A. PITTS, Petitioner,
B. M. ANTONELLI, Warden, Respondent.
STEPHEN P. FRJOT, UNITED STATES DISTRICT JUDGE
Delmonte A. Pitts, a federal prisoner, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Petitioner appears
pro se and his pleadings are liberally construed.
Magistrate Judge Gary M. Purcell issued a Supplemental Report
and Recommendation (doc. no. 12, the Supplemental Report),
recommending the court dismiss the petition for lack of
objects to the Supplemental Report on three grounds. All
objected to matters are reviewed de novo.
first and second objections challenge the magistrate
judge's recommended finding that petitioner may not use
the savings clause found in 28 U.S.C. § 2255(e) to test
the legality of petitioner's detention by bringing this
§ 2241 petition. The Supplemental Report addresses this
issue, noting that the savings clause does not provide a
means for asserting claims in a § 2241 proceeding which
could have been raised in a petitioner's first §
2255 motion. The Supplemental Report also addresses
petitioner's arguments that are based on Mathis v.
United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), and
Descamps v. United States, ___ U.S. ___, 133 S.Ct.
2276 (2013). The Supplemental Report notes that these cases
do not apply retroactively to cases on collateral review, and
that as a result, petitioner may not rely on them to invoke
§ 2255's savings clause as a means for avoiding the
procedural requirements for filing a second or successive
§ 2255 motion (with which petitioner has not
complied). The Supplemental Report concludes that
petitioner has not satisfied § 2255(e)'s savings
clause, and recommends that the § 2241 petition be
dismissed for lack of jurisdiction. The court agrees with the
magistrate judge's analysis and conclusions.
third objection to the Supplemental Report, petitioner argues
that even if this court agrees with the magistrate judge that
the court does not have jurisdiction to address the
petitioner's § 2241 claims, the court should
transfer this matter to the Court of Appeals rather than
dismiss it. The Supplemental Report recommends dismissal
rather than transfer because the magistrate judge concluded
that petitioner has not asserted any meritorious claims and
cannot satisfy the requirements for proceeding with a second
or successive § 2255 motion. Where there is no risk that
a meritorious successive claim will be lost absent a
transfer, a district court does not abuse its discretion if
it concludes that it is not in the interest of justice to
transfer the matter and it dismisses it instead.
See, In re Cline, 531 F.3d 1249, 1252
court agrees with the magistrate judge that there is no risk
that a meritorious successive claim will be lost absent a
transfer, and that it is not in the interests of justice to
transfer this matter. Accordingly, as recommended, the
petition will be dismissed. See, United States
v. Copeland, 2015 WL 5311335, *3 (N.D. Okla. 2015)
(where petitioner was not entitled to rely on the savings
clause of § 2255 in order to pursue a petition under
§ 2241, the petition was treated as a second or
successive § 2255 motion under § 2255(h) and was
dismissed for lack of jurisdiction rather than transferred to
the Court of Appeals).
objections to the Supplemental Report are
DENIED. After review, the Supplemental
Report and Recommendation of Magistrate Judge Purcell is
ACCEPTED, ADOPTED and
AFFIRMED. As recommended in the Supplemental
Report, the petition, which is brought pursuant to 28 U.S.C.
§ 2241, is DISMISSED for lack of
not clear whether a certificate of appealability (COA) is
required when a federal prisoner files a § 2241 petition
which is then disposed of, in whole or in part, with
reference to the fact that petitioner has not satisfied the
requirements for a successive § 2255
motion. Furthermore, the Court of Appeals has
recently entered a limited remand in a case where the
district court did not rule on a COA in § 2255
proceedings. United States v. Higley, No. 17-111
(September 29, 2017). To avoid that result in the event that
this court is required to address a COA, the court finds as
follows: the issues presented by petitioner are not
reasonably debatable; the requirements for a COA have not
been met; and this court DENIES a COA if it
is required to rule on this issue.
 Section 2255(e) provides: “An
application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court
has denied him relief, unless it also appears that the remedy
by motion is inadequate or ineffective to test the legality
of his detention.” Federal prisoners who are barred
from bringing second or successive § 2255 motions may
still be able to petition for habeas relief under § 2241
through the mechanism of § 2255(e)'s saving clause.
But, as explained in the Supplemental Report, the savings
clause applies only in extremely limited
 Prisoners must obtain circuit-court
authorization before filing a second or successive habeas
claim, which petitioner has not done.
 A COA is not required when a petition
is brought by a federal prisoner under § 2241,
Montez v. McKinna, 208 F.3d 862, 867
(10th Cir. 2000), and some decisions indicate this
rule continues to apply in situations similar to those
presented here. See, Crawford v. United
States, 650 Fed.Appx. 573, 575 (10th Cir.
2016) (COA not required where district court construed Rule
60(b) motion as a § 2241 application and then determined
that petitioner had failed to demonstrate that he could
invoke § 2255(e)'s savings clause to attack the
validity of his federal sentence under § 2241;
unpublished); Flint v. United States, 463 Fed.Appx.
876, **1-2 (11th Cir. 2012) (district court
concluded petitioner could not bring a § 2241 petition
because he could not satisfy the savings clause of §
2255(e); district court construed the petition as a §
2255 motion, as to which petitioner had not obtained
permission to file a second or successive motion, and denied
the petition and a COA; Court of Appeals held that even
though the § 2241 petition had been construed as a
§ 2255 motion, the real reason why the district court
denied the petition was because he could not bring his claims
under § 2241 so that no COA was required; unpublished).
However, in Copeman v. Bragg, 383 Fed.Appx. 713,
715-16 (10th Cir. 2010) (unpublished), a federal
prisoner sought a COA to appeal from the dismissal of his
§ 2241 petition, ...