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Pereda v. Warden

United States District Court, W.D. Louisiana, Alexandria Division

October 15, 2018

DANNY PEREDA, Petitioner
v.
WARDEN, Respondent

          DEE D. DRELL JUDGE.

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Because 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.

         I. Background

         Following 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.

         Pereda claims his sentence is unlawful under Mathis v. United States, 136 S.Ct. 2243 (2016).

         II. Law and Analysis

         A. Pereda does not meet the requirements of the savings clause.

         Pereda 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. 1979).

         The 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).

         Pereda's § 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 became final.”).

         Because 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.

         III. ...


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