United States District Court, W.D. Louisiana, Alexandria Division
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 Dante Jamon Walker
(“Walker”) (#07046-017). Walker is an inmate in
the custody of the Federal Bureau of Prisons, incarcerated at
the United States Penitentiary in Pollock, Louisiana. Walker
challenges the legality of his sentence imposed in the United
States District Court for the Northern District of Florida.
Walker cannot meet the requirements of the savings clause of
28 U.S.C. § 2255(e), his petition should be dismissed
for lack of jurisdiction.
was convicted of conspiracy to distribute and possess with
intent to distribute 50 or more grams of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), 846, and possession with intent to
distribute five or more grams of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). The Government
sought enhanced penalties due to Walker's prior state
court felony convictions. Based on drug quantity and two
prior convictions, Walker's range under the United States
Sentencing Guidelines (“USSG”) was 360 months to
life. Walker was sentenced to life imprisonment on the first
count, and 360 months on the second count. United States
v. Walker, 390 Fed.Appx. 854 (11th Cir. 2010). Walker
appealed, challenging the denial of a pretrial motion to
suppress. The Eleventh Circuit affirmed the conviction. The
United States Supreme Court denied writs. United States
v. Walker, 390 Fed.Appx. 854, 855 (11th Cir. 2010),
cert. denied, 563 U.S. 919 (2011).
filed a motion to vacate his sentence under 28 U.S.C. §
2255, which was denied. United States v. Walker,
3:08-CR-87, 2015 WL 4389939, at *2 (N.D. Fla. July 15, 2015).
sought leave in the United States Court of Appeals for the
Eleventh Circuit to file a second or successive motion to
vacate. (Docket No. 16-14291, 11th Cir.). Walker claimed
that, under Johnson v. United States, 135 S.Ct. 2551
(2015), his sentence was unconstitutionally enhanced. The
appellate court found that Johnson was inapplicable
because Walker was not sentenced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
Instead, Walker's sentence was enhanced under the career
offender provision of the USSG. The court noted that
Johnson does not extend to the USSG. Thus,
Walker's request for authorization was denied. (Docket
No. 16-14291, 11th Cir.).
§ 2241 petition, Walker claims he is entitled to
challenge his conviction under Mathis v. United
States, 136 S.Ct. 2243 (2016).
Law and Analysis
Walker does not 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 burden of affirmatively proving that the
§ 2255 remedy is inadequate rests with the petitioner.
See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
Fifth Circuit has identified the limited circumstances under
which the savings clause of § 2255 applies. A petitioner
must demonstrate that: (1) his claims are based on a
retroactively applicable Supreme Court decision, which
establishes that he may have been convicted of a nonexistent
offense; and (2) his claims were foreclosed by circuit law at
the time when the claims should have been raised in his
trial, appeal, or first § 2255 motion. See
Reyes-Requena, 243 F.3d 893, 904 (5th Cir. 2001).
motion relies on Mathis. However, Mathis
does not set forth a new rule of constitutional law that has
been made retroactive to cases on collateral review. See
In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (denying
authorization to file a successive application under §
2255(h)(2) because Mathis did not set forth a new
rule of constitutional law that has been made retroactive to
cases on collateral review); United States v.
Taylor, No. 16-6223, 2016 WL 7093905 (10th Cir. Dec. 6,
2016) (Mathis did not announce a new substantive
rule). In fact, the Supreme Court explicitly stated in
Mathis that it was not announcing a new rule, and
that its decision was dictated by decades of prior precedent.
See Mathis, 136 S.Ct. at 2257; see also ...