United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Elio Hernandez's petition for
habeas corpus relief under 28 U.S.C. § 2241 [Doc. No.
1.] This Court has conducted a preliminary review of the
petition under Rule 4 of The Rules Governing Section 2254
Cases in the United States District Courts. Based on that
review, the Court finds that Hernandez's current
challenge to his 2007 federal prison sentence cannot be
brought in a § 2241 habeas petition, and the case should
therefore be dismissed without prejudice for lack of
2008, Hernandez pleaded guilty to Conspiracy to Distribute
and Possess with Intent to Distribute drugs in violation of
federal drug laws and was sentenced to an enhanced sentence
under the career offender sentencing guidelines. See
21 U.S.C. §§ 841 and 846; United States v.
Hernandez, No. 08-cr-014 (MJD/SRN), 2014 WL 5361990, at
*1 (D. Minn. Oct. 21, 2014). “Hernandez had a criminal
history category III based on two prior convictions and a
total offense level of 39, which resulted in an advisory
guideline range of 324-405 months.” United States.
v. Hernandez, 354 Fed.Appx. 277, 277 (8th Cir. 2009).
Hernandez's request for downward departure was denied,
and he was ultimately sentenced to 360 months. Id.
On direct appeal, Hernandez challenged the sentencing
court's drug quantity determination and the denial of his
request for a downward departure. Id. The Eighth
Circuit Court of Appeals affirmed. Id.
2014, Hernandez moved to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255 in light of the Supreme
Court's decision in Alleyne v. United States,
570 U.S. 99 (2013), which held that certain facts that
increase a mandatory minimum sentence must be found beyond a
reasonable doubt by a jury. Hernandez, 2014 WL
5361990, at *1, 3. The sentencing court denied
Hernandez's § 2255 motion because Alleyne
did not apply retroactively, and, even if it did, Hernandez
would not benefit from it because it did not apply to
guideline calculations that did not increase a mandatory
minimum sentence. Id. at *3.
now brings a petition for habeas relief pursuant to 28 U.S.C.
§ 2241 asserting that his confinement is
unconstitutional based on the United States Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016). “In Mathis, the Court dealt
with the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), which, like the advisory Guidelines
career-offenders provision . . . calls for enhanced
punishment when a defendant has previously been convicted of
certain types and numbers of offenses.” Washington
v. United States, 868 F.3d 64, 65 (2d Cir. 2017)
(internal citations and quotations omitted). “[B]ecause
‘it is impermissible for a particular crime [to]
sometimes count towards enhancement and sometimes not,
depending on the facts of the case, the sentencing judge may
look only to the elements of the offense, not to the facts of
the defendant's conduct.'” Id.
(quotations omitted). Mathis involved the
“proper determination of whether the defendant's
prior convictions are of the type that constitute proper
predicates for enhancement.” Washington, 868
F.3d at 65.
collateral challenge to a federal conviction or sentence must
generally be raised in a motion to vacate filed in the
sentencing court under § 2255 . . . and not in a habeas
petition filed in the court of incarceration . . . under
§ 2241.” Hill v. Morrison, 349 F.3d 1089,
1091 (8th Cir. 2003) (citing DeSimone v. Lacy, 805
F.2d 321, 323 (8th Cir. 1986)). If a federal prisoner brings
his claim in the court of incarceration under § 2241,
the Court cannot entertain the petition unless the prisoner
first shows “that § 2255 would be inadequate or
ineffective.” Abdullah v. Hedrick, 392 F.3d
957, 959 (8th Cir. 2004) (citing Hill); see
also 28 U.S.C. § 2255(e) (a habeas petition from a
federal prisoner “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”). The court of incarceration has
subject matter jurisdiction only if the remedies in the
sentencing district are inadequate or ineffective.”
Hill, 349 F.3d at 1090. The “inadequate or
ineffective” language in 2255(e) is sometimes called
the “savings clause, ” Abdullah, 392
F.3d at 959, because it can save a § 2241 habeas
petition from being dismissed. The prisoner has the burden of
establishing that § 2255 is inadequate or ineffective.
Hill, 349 F.3d at 1091.
petitioner to establish that § 2255 is inadequate or
ineffective in a particular case, “there must be more
than a procedural barrier to bringing a § 2255
petition.” Abdullah, 392 F.3d at 959 (citing
Hill). In other words, § 2255 will not be
viewed as inadequate or ineffective “merely because
§ 2255 relief has already been denied, . . . or because
petitioner has been denied permission to file a second or
successive § 2255 motion . . . or because a second or
successive § 2255 motion has been dismissed, . . . or
because petitioner has allowed the one year statute of
limitations and/or grace period to expire.” United
States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000)
(citations omitted); see also Abdullah, 392 F.3d at
959. Notably for purposes of this case, “[a] prisoner
cannot raise, in a § 2241 motion filed in the district
of incarceration, an issue which could have been or actually
was raised in the § 2255 motion filed in the sentencing
district.” Hill, 349 F.3d at 1092 (8th Cir.
2003) (citing Lurie, 207 F.3d at 1077-78, for
proposition that § 2255 was adequate because “all
of the claims asserted could have been maintained in a timely
§ 2255 motion or on direct appeal”). “The
savings clause does not apply unless the prisoner shows that
he ‘never had an unobstructed procedural opportunity to
raise the claim.'” Clark v. United States,
No. 17-cv-2040 (SRN/DTS), 2017 WL 4685064 (D. Minn. Oct. 16,
2017) (dismissing § 2241 petition based on
Mathis because the law did not change after
petitioner's § 2255 motion)
the Eighth Circuit and the United States Supreme Court have
not delineated the precise contours of the savings clause,
challenges like Hernandez's based on Mathis do
not meet the high bar. Hernandez's “reliance on
Mathis is [therefore] misplaced, because
Mathis did not create a new rule of law that [he]
could not have raised in his § 2255 motion.”
See Clark, 2017 WL 4685064, at *2; see also,
e.g., Washington, 868 F.3d at 65 (the holding of
Mathis “was not based on the Constitution and
was based on a rule applied for decades”); United
States v. Taylor, 672 Fed.Appx. 860, 864 (10th Cir.
2016) (“the Supreme Court explicitly state in Mathis
that it was not announcing a new rule”); Chavis v.
United States, No. 17-cv-1823 (DSD/KMM), 2018 WL
1378756, at *2 (D. Minn. Mar. 19, 2018); Rodolfo v.
Bell, No. 17-cv-3066 (DWF/TNL), 2018 WL 734047, at *4
(D. Minn. Jan. 10, 2018); Trice v. United States,
No. 17-cv-1995 (DWF/LIB), 2017 WL 4685062 (D. Minn. Oct. 16,
2017); Hubbard v. LaRiva, No. 17-cv-1805 (WMW/BRT),
2017 WL 8944026, at *2 (D. Minn. July 28, 2017); Blake v.
United States, No. 17-cv-1108 (PJS/DTS), 2017 WL
2655098, at *1 (D. Minn. June 20, 2017)
(“Mathis, however, does not represent a change
in the law; instead, its decision was dictated by decades of
has failed to show that the savings clause applies in order
to establish subject matter jurisdiction over his petition.
The Court therefore recommends the petition be dismissed
based on the foregoing, and all the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED
1. Petitioner's application for habeas corpus relief
pursuant to 28 U.S.C. § 2241 [Doc. No. 1] be
2. This action be DISMISSED without
prejudice for lack of jurisdiction.
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and
serve specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served ...