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 Danny Pereda
(“Pereda”) (#12769-111). Pereda is an inmate in
the custody of the Federal Bureau of Prisons, incarcerated at
the United States Penitentiary in Pollock, Louisiana. Pereda
challenges the legality of his sentence imposed in the United
States District Court for the Eastern District of California.
Pereda cannot meet the requirements of the savings clause of
28 U.S.C. § 2255(e), his petition should be dismissed
for lack of jurisdiction.
a guilty plea, Pereda was convicted of conspiracy to
distribute and possess with intent to distribute at least 500
grams of methamphetamine, at least five kilograms of cocaine,
and marijuana. (Docket No. 2:11-CR-119, E.D. Ca., Doc. 163).
Pereda was sentenced to 240 months of imprisonment. Pereda
did not appeal his sentence.
claims his sentence is unlawful under Mathis v. United
States, 136 S.Ct. 2243 (2016).
Law and Analysis
Pereda 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).
§ 2241 petition 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. Wiese, 896 F.3d 720 (5th Cir.
2018), as revised (Aug. 14, 2018) (Mathis did not
state a new rule of constitutional law that has been made
retroactive to cases on collateral review by the Supreme
Court); Jenkins v. Harmon, 736 Fed.Appx. 73 (5th
Cir. 2018) (Mathis is not retroactively applicable).
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 Teague
v. Lane, 489 U.S. 288, 301 (1989) (“[A] case
announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction
Pereda has not identified a retroactively applicable Supreme
Court decision, he cannot meet the requirements of the
savings clause of § 2255(e). Therefore, this Court lacks
jurisdiction to consider the merits of Pereda's claim.