United States District Court, W.D. Louisiana, Alexandria Division
CESAR E. CANTU, Petitioner
CHRIS MCCONNELL, Respondent
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2241) filed by pro se Petitioner Cesar E. Cantu
(“Cantu”) (#32028-279). Cantu is an inmate in the
custody of the Federal Bureau of Prisons (“BOP”),
incarcerated at the Federal Correctional Institution in
Pollock, Louisiana. Cantu challenges the legality of his
sentence imposed in the United States District Court for the
Southern District of Texas.
Cantu cannot meet the requirements of the savings clause of
28 U.S.C. § 2255, his petition should be dismissed for
lack of jurisdiction.
and four co-defendants were charged with drug trafficking.
Cantu was also charged with conspiracy to possess with intent
to distribute and possession with intent to distribute at
least 1, 000 kilograms of marijuana. (Docket No.
5:09-CR-2803, S.D. Tex.). Cantu entered a guilty plea to
conspiracy to possess with intent to distribute over 1, 000
kilograms of marijuana, in violation of 21 U.S.C. § 846,
841(a), 841(b)(1)(A), and 851. Pursuant to the plea
agreement, Cantu waived his right to appeal the sentence
imposed or the manner in which it was determined, and waived
his right to contest his conviction or sentence by means of
any post-conviction proceeding. (Docket No. 5:09-CR-2803,
S.D. Tex., Doc. 308). Cantu was sentenced to a term of 240
months of imprisonment. (Docket No. 5:09-CR-2803, S.D. Tex.,
the plea agreement, Cantu filed a motion to vacate his
sentence shortly after imposition. The court found that
Cantu's waiver of his right to appeal or collaterally
attack his conviction was valid, so Cantu's § 2255
motion was denied. (Docket No. 5:09-CR-2803, S.D. Tex., Docs.
364, 365). Cantu appealed the judgment, but the appeal was
dismissed for failure to pay the filing fee. (Docket No.
13-40323, 5th Cir.).
years later, Cantu filed a second § 2255 motion seeking
to proceed under Johnson v. United States, 135 S.Ct.
2251 (2015). (Docket No. 5:09-CR-2803, S.D. Tex., Doc. 403).
The court transferred the motion to the United States Court
of Appeals for the Fifth Circuit for a determination as to
whether Cantu should be granted leave to proceed on his
successive motion. (Docket No. 5:09-CR-2803, S.D. Tex., Doc.
405). In denying authorization, the Fifth Circuit noted that
Johnson provided no basis for Cantu to attack his
sentence because his sentence was not enhanced under the
residual clause of the Armed Career Criminal Act or a similar
clause. Rather, Cantu's sentence was enhanced pursuant to
21 U.S.C. § 851(b)(1)(A) because Cantu had a prior
felony drug offence. (Docket No. 16-40949, 5th Cir.
following year, Cantu sought the Fifth Circuit's
authorization to file a successive § 2255. Cantu
contended that, under Mathis v. United States, 136
S.Ct. 2243 (2016), United States v. Tanksley, 848
F.3d 347 (5th Cir. 2017), United States v. Conley,
No. 15-10550, 2016 WL 7187376 (5th Cir. Dec. 9, 2016), and
United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), he was entitled to relief from
his sentencing enhancement. (Docket No. 17-40156, 5th Cir.).
The Fifth Circuit denied authorization, finding that Cantu
could not show that his motion relied on either: (1) newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty, or (2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
(Docket No. 17-40156, 5th Cir. 4/18/17).
Law and Analysis
Cantu cannot meet the requirements of the savings
seeks to proceed under the savings clause of § 2255(e),
which provides a limited exception to the rule that a §
2241 petition may not be used to challenge the validity of a
federal sentence and conviction. See Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). The savings clause allows
a prisoner to rely on § 2241 if the remedy available
under § 2255 would be “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
§ 2255(e). The petitioner bears the burden of
affirmatively proving that the § 2255 remedy is
inadequate. See McGhee v. Hanberry, 604 F.2d 9, 10
(5th Cir. 1979).
state a claim under the savings clause, a petitioner must
show that the claim is based on a retroactively applicable
Supreme Court decision that establishes the petitioner may
have been convicted of a nonexistent offense, and the claim
was foreclosed by circuit law at the time it should have been
raised in the petitioner's trial, appeal, or first §
2255 motion. Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001).
claims that Mathis, Tanksley, and
Hinkle render him actually innocent of the §
851 enhancement. (Doc. 1-2, p. 8). Cantu also argues that, in
light of Sessions v. Dimaya, his prior conviction of
domestic abuse is not a qualifying ...