United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
matter comes before the Court for review of the Report and
Recommendation (“R. & R.”) (Doc. No. 8)
issued by United States Magistrate Judge Shon T. Erwin
pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). On August
21, 2019, Petitioner, a federal prisoner appearing pro se,
filed his Amended Petition (Doc. No. 7) for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging the
length of his sentence as improperly enhanced under the Armed
Career Criminal Act (“ACCA”) based upon
Mathis v. United States, 136 S.Ct. 2243 (2016).
See Am. Pet. at 7. Judge Erwin recommends that the
Amended Petition (Doc. No. 7) be dismissed for lack of
September 13, 2019, Petitioner filed a timely objection to
the R. & R. See Pet'r's Obj. (Doc. No.
9). Petitioner's Objection triggers de novo review by
this Court. See, e.g., United States v. 2121 E.
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b)(3). Petitioner's
objections challenge the magistrate judge's 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 R. &
R. concludes that the savings clause does not provide a means
for asserting claims in a § 2241 proceeding that could
have been raised in a petitioner's first § 2255
motion. See R. & R. at 7.
Erwin thoroughly discussed and applied the appropriate
standard for determining whether the Court has jurisdiction
in this case. See R. & R. at 5-7. As explained
in the R. & R., Petitioner is challenging the validity of
his conviction and sentence and, generally, a federal
prisoner may make such a challenge only under § 2255(a).
See R. & R. at 5 (citing Prost v.
Anderson, 636 F.3d 578, 580 (10th Cir. 2011)).
Petitioner previously sought relief attacking the legality of
his conviction or sentence under 28 U.S.C. § 2255, and
such relief was denied by the sentencing court. R. & R.
at 2, 5. In order to file a second or successive § 2255
petition, Petitioner would need to seek leave from the Tenth
Circuit-something that, as Judge Erwin correctly notes,
Petitioner has not done. R. & R. at 5; see also
28 U.S.C. §§ 2244(b)(3), 2255(h).
federal prisoner may resort to § 2241 to contest his
conviction only in the rare circumstance that the prisoner
satisfies § 2255(e)'s savings clause. R. & R. at
6. Judge Erwin concludes, and the undersigned upon
independent review agrees, that Petitioner has does not
satisfy his burden to demonstrate that “‘the
§ 2255 remedial mechanism is ‘inadequate or
ineffective' to test the legality of his
detention.'” R. & R. at 6 (quoting
Prost 636 F.3d at 580).
first objects on the basis that “the strongest evidence
he could possibly present to meet his burden” to show
§ 2255 is inadequate or ineffective to provide him
relief is an opinion of the Department of Justice that
allegedly supports the applicability of § 2255(e).
Pet'r's Obj. at 1; see also Am. Pet. at
The Court, however, must make its determination of
jurisdiction based upon authoritative law and controlling
precedent rather than simply relying on one party's
position on the matter. Further, as discussed below, the
Court finds that even assuming Petitioner correctly states
the position of the Department of Justice, he fails to
establish that jurisdiction exists given the procedural
history of this case and controlling case law.
next objects to Judge Erwin's “heavy”
reliance on Lewis v. English, 736 F. App'x. 749,
752 (10th Cir. 2011), arguing that unlike the petitioner in
Lewis who failed to make a Mathis-type
argument, Petitioner has “consistently argued from his
sentencing hearing forward that his second-degree burglary
conviction should not have been counted as a predicate felony
for purposes of applying the ACCA.” Pet'r's
Obj. at 5. The Court finds that Judge Erwin did not place
undue reliance on Lewis. The R. & R. also cites
Prost, 636 F.3d at 590, in which the Tenth Circuit
declined to apply the savings clause after the Supreme Court
announced a new rule of statutory interpretation reversing
circuit precedent in effect at the time of the
petitioner's § 2255 motion. Moreover, as noted by
the Fifth Circuit in affirming the dismissal of
Petitioner's § 2241 petition, Mathis has
been held to not apply retroactively. R. & R. at 4
(citing Sharbutt v. Vasquez, 749 Fed.Appx. 307 (5th
Cir. 2019)); see also United States v. Taylor, 672
Fed.Appx. 860, 864-65 (10th Cir. 2016) (“Because
Mathis did not announce a new rule, [the petitioner]
cannot rely on it in a § 2255 petition filed nearly
fifteen years after the judgment in his criminal case became
final.”); Sandlain v. English, 714 Fed.Appx.
827, 831 (10th Cir. 2017) (“Mathis has not
been made retroactive to cases on collateral review by the
Supreme Court.”). But see, e.g., United
States v. Lewis, 904 F.3d 867, 872 (10th Cir. 2018)
(acknowledging “that reasonable jurists could debate
whether the district court erred in declining to
retroactively apply Mathis”) (citing cases).
Mathis applied retroactively, the Tenth Circuit has
explained that “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 . . .
.” Prost, 636 F.3d at 590. “The savings
clause doesn't guarantee results, only process.”
Id. Therefore, neither the failure of
Petitioner's claim based upon misapplication of the ACCA
in previous attempts for relief nor the position of the
Department of Justice in another proceeding constitutes
grounds to proceed under the savings clause of § 2255.
novo review of the issues presented, the Court fully concurs
with Judge Erwin's analysis. The Court finds that it
lacks statutory jurisdiction over the instant case and that
the Amended Petition should be dismissed without prejudice.
THEREFORE ORDERED that the Report and Recommendation (Doc.
No. 8) is ADOPTED and the Amended Petition (Doc. No. 7) is
DISMISSED without prejudice for lack of jurisdiction.
 The Court notes that in this case the
government has not been directed to file an answer to the
relevant pleading and has not otherwise presented ...