United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. RAU U.S. MAGISTRATE JUDGE
Carrie Anne Casarez pleaded guilty in this District to one
count of conspiracy to distribute and possess with intent to
distribute more than 50 grams of methamphetamine and was
sentenced to a 162-month term of imprisonment. See United
States v. Casarez, No. 14-CR-0132 (JNE/HB) (D. Minn.).
She is currently incarcerated at the Federal Correctional
Institution in Waseca, Minnesota. Casarez filed a petition
for a writ of habeas corpus seeking relief from her sentence.
See Petition [ECF No. 1]. Because the claim in
Casarez's petition may only be raised in a motion for
relief under 28 U.S.C. § 2255, it is recommended that
this action be dismissed.
habeas corpus petition itself is not a model of clarity; she
contended only that she was denied “due process”
and that her claim was premised on “a change in Supreme
Court and circuit [precedents].” Petition at 6. This
Court therefore ordered Casarez to elaborate on her claim for
relief. See ECF No. 3. In her response, Casarez
argued as follows: At sentencing, Casarez was found to be a
career offender under § 4B1.1 of the United States
Sentencing Guidelines. The Supreme Court's recent
decision in Sessions v. Dimaya, 138 S.Ct. 1204
(2018), however, casts into doubt the application of that
career-offender enhancement. Casarez therefore asks the Court
to find that, in light of Dimaya, she was not a
career offender at the time her sentence was imposed and thus
should be resentenced. See ECF No. 4.
is well settled a 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). Federal
district courts lack jurisdiction to hear a federal
prisoner's collateral challenge to her original
conviction or sentence brought in a habeas petition unless
the prisoner demonstrates that the remedy provided by §
2255 is inadequate or ineffective to test the legality of her
detention. See 28 U.S.C. § 2255(e) (“An
application for a writ of habeas corpus in behalf of a
[federal] prisoner . . . shall not be entertained . . .
unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his
detention.”); DeSimone v. Lacy, 805 F.2d 321,
323 (8th Cir. 1986) (per curiam). The “inadequate or
ineffective remedy” exception is often referred to as
the “savings clause.” See Abdullah v.
Hedrick, 392 F.3d 957, 959 (8th Cir. 2004).
the Supreme Court nor the Eighth Circuit Court of Appeals has
set forth the exact contours of the savings clause, but it is
clear that the savings clause applies very narrowly. For
example, “[i]t is well established that in order to
establish a remedy is inadequate or ineffective under §
2255, there must be more than a procedural barrier to
bringing a § 2255 petition.” Abdullah,
392 F.3d at 959. Thus, it is not enough to show that a motion
under § 2255 would now be untimely, or that the motion
would now require authorization due to being “second or
successive.” See United States v. Lurie, 207
F.3d 1075, 1077 (8th Cir. 2000) (collecting cases). At a
minimum, the petitioner seeking to invoke the savings clause
must show that she “had no earlier procedural
opportunity to present [her] claims.”
Abdullah, 392 F.3d at 963; accord United States
v. Barrett, 178 F.3d 34, 52 (1st Cir. 1999)
(“[W]here a prisoner had an opportunity to present his
claim properly in his first § 2255 petition, but failed
to do so, any ‘ineffectiveness' of his current
§ 2255 petition is due to him and not to §
habeas petition is undoubtedly a challenge to the validity of
her sentence. As such, it is subject to - and ultimately
fails pursuant to - § 2255(e), because nothing is
preventing Casarez from raising her claim under
Dimaya pursuant to § 2255.
is correct that some, though not all, circuits have concluded
that habeas corpus relief is appropriate where the petitioner
has previously sought relief under § 2255 and relies on
a new rule of statutory law made retroactive to cases on
collateral review to challenge the validity of her sentence.
See United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018); Harrington v. Ormond, 900 F.3d 246, 249
(6th Cir. 2018); In re Davenport, 147 F.3d 605,
610-11 (7th Cir. 1998); In re Dorsainvil, 119 F.3d
245, 251-52 (3d Cir. 1997); but see McCarthan v. Director
of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076
(11th Cir. 2017) (en banc) (rejecting prior savings-clause
jurisprudence); Prost v. Anderson, 636 F.3d 578, 589
(10th Cir. 2011). But that narrow opening for habeas corpus
relief does Casarez no good in this case for two reasons:
for the savings clause to apply, the litigant putting forward
the habeas claim must be a successive petitioner under §
2255. This is because certain claims that are generally
cognizable under § 2255 simply cannot be authorized for
review in a second or successive motion for relief under
§ 2255. See 28 U.S.C. § 2255. Thus, a
petitioner may have a viable claim for collateral relief from
her sentence and yet, through no fault of her own, be unable
to present that claim under § 2255. In this case,
though, it is not altogether clear that a motion Casarez
might bring under § 2255 would be successive
within the meaning of § 2255(h). Casarez did present a
motion putatively under § 2255 in her criminal case, but
the Court recognized that the claim raised in that petition
might be more appropriately raised pursuant to 18 U.S.C.
§ 3582(c)(2) while explaining why her claim would fail
on the merits under that provision. If Casarez's earlier
collateral attack - notwithstanding the label attached to her
motion - is considered as having been raised under §
3582(c)(2) rather than under § 2255, then Casarez would
not need authorization before raising in a § 2255 motion
the Dimaya claim presented in these proceedings.
and more importantly, § 2255(h) does not preclude
authorization of a claim brought pursuant to Dimaya.
Casarez contends that she cannot pursue relief under §
2255 because a claim under Dimaya is based on a new
rule of statutory law, and § 2255(h)(2) permits
authorization only of claims based on new rules of
constitutional law. As just explained, §
2255(h) may have no import at all to this case, as Casarez
does not appear to be a successive § 2255 petitioner.
Even if she were, however, her argument for jurisdiction in
these habeas proceedings would fail. Dimaya declared
the “residual clause” of 18 U.S.C. § 16(b)
void for vagueness - that is, too arbitrary and indistinct to
comport with the constitution's guarantee of due process.
See Dimaya, 138 S.Ct. 1204, 1212-13. In this respect
(and in many others), Dimaya closely and expressly
tracks the rule established by Johnson v. United
States, 135 S.Ct. 2551 (2015), which itself was
determined to be a new rule of constitutional law, not
statutory law, see Welch v. United States, 136 S.Ct.
1257 (2016); Russo v. United States, 902 F.3d 880,
881 (8th Cir. 2018) (“[T]he Court in Johnson
announced a new rule of constitutional law . . . .”).
Dimaya, like Johnson, declared not that
courts' previous understanding of the scope of the
relevant statute was incorrect, but that the statute itself
(or at least a portion thereof) was invalid on constitutional
grounds. This is a constitutional holding, not a statutory
holding. Thus, assuming that the other requirements of §
2255(h) are met - the rule of Dimaya is
“new, ” that rule applies retroactively to cases
on collateral review, and so on - a petitioner may present a
Dimaya claim through a second-or-successive motion
under § 2255 after receiving authorization from the
appropriate court of appeals. Put another way, § 2255
cannot be inadequate or ineffective for raising a claim under
Dimaya, even where a petitioner has sought relief
under § 2255 before.
corpus, then, is not the correct procedural vehicle for
Casarez to bring her claim under Dimaya.
See 28 U.S.C. § 2255(e). This Court will
therefore recommend that this case be dismissed without
prejudice for lack of jurisdiction. Only one matter merits
further comment: This Court declines to recommend
“transferring” the petition to Casarez's
criminal case for consideration as a motion under § 2255
for the simple reason that, whatever the applicability of
Dimaya to the Sentencing Guidelines career-offender
enhancement as a general matter,  Casarez simply was not
designated a career offender in her criminal proceedings. On
the merits, then, a motion under § 2255 would be utterly
beside the point: Dimaya could not have called into
question a career-offender enhancement that was not applied
to Casarez in the first place. Transfer of the petition would
not be “in the interest of justice, ” 28 U.S.C.
§ 1631, and is therefore not recommended.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED that this matter
be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.