United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
Keith Ball United States Magistrate Judge.
an action pursuant to 28 U.S.C. § 2241 brought by a
federal prisoner incarcerated at the Yazoo City Federal
Correctional Complex. Petitioner asserts that his sentence
was improperly enhanced under the career offender provisions
of the sentencing guidelines. The undersigned recommends that
the petition be dismissed.
Acevedo entered a guilty plea in 2009 in the United States
District Court for the Southern District of Iowa to
possession of a firearm in furtherance of a drug trafficking
crime, a violation of 18 U.S.C. § 924(c)(1)(A).
Thereafter he was sentenced as a career offender under the
sentencing guidelines to a term of 180 months imprisonment
followed by three years of supervised release. In his §
2241 petition, Acevedo argues that under Mathis v. United
States, 136 S.Ct. 2243 (2016), and related lower court
cases, the prior convictions used to support his career
offender enhancement no longer qualify as predicate felonies
and that his sentence is therefore invalid.
the proper vehicle for challenging a federal conviction or
sentence is a motion under 28 U.S.C. § 2255 in the court
of conviction, not a § 2241 action in the district of
incarceration. Ojo v. I.N.S., 106 F.3d 680, 683 (5th
Cir. 1997) (errors occurring before or during sentencing
should be attacked pursuant to § 2255, not § 2241).
Acevedo contends that he may nevertheless proceed under
§ 2241 because his claim falls under the “savings
clause” exception of § 2255, which allows a
prisoner to resort to § 2241 if he establishes that a
remedy under § 2255 is inadequate or unavailable.
See 28 U.S.C. § 2255(e). A remedy is inadequate
if a petitioner's claim (1) is based upon a
retroactively-applicable Supreme Court decision establishing
that he may have been convicted of a nonexistent offense and
(2) was foreclosed by circuit law at the time when the claim
should have been raised in his trial, direct appeal, or first
§ 2255 motion. Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). Acevedo's position is
that he may claim the benefits of the savings clause because
his attack on his sentence enhancement is based upon a
newly-recognized, retroactively-applicable rule of law.
the only Supreme Court case cited by Acevedo, concerned the
method by which a state criminal statute is to be analyzed to
determine whether it sufficiently matches one of the generic
offenses listed in the Armed Career Criminal Act (ACCA) such
that it qualifies as an enhancer. The significance of
Mathis is that it clarified the difference between
statutes that set forth alternative elements (and therefore
separate crimes) and those that set forth alternative means
of committing a single crime. Under Mathis, where a
statute of the latter type is broader than the federal
generic offense, the conviction does not qualify as an
enhancer. Mathis, 135 S.Ct. at 2256-57.
was not sentenced under the ACCA, and he does not explain how
Mathis (or the other case cited by him) applies to
his sentencing. He does not cite to or identify the language
of the state statutes that were used to enhance his sentence,
nor does he make any specific argument as to why his state
convictions did not qualify as enhancers under the
guidelines. Furthermore, Mathis did not set out a
new rule of constitutional law that is retroactively
applicable on collateral review, as required under the
savings clause. See United States v. Samarripa, 697
Fed.Appx. 374 (5th Cir. 2017) (per
curiam) (citing In re Lott, 838 F.3d 522, 523
(5th Cir. 2016) (per curiam)). Thus,
Acevedo's reliance upon Mathis is misplaced.
it is well-established in the Fifth Circuit that claims
relating to sentence enhancement determinations do not fall
within the savings clause, and are therefore not cognizable
under § 2241, because the clause requires a showing of
actual innocence of the underlying offense. See In re
Bradford, 660 F.3d 226, 230 (5th Cir. 2010)
(claim of actual innocence of career offender enhancement is
not a claim of actual innocence of the crime of conviction);
see also Padilla v. United States, 416 F.3d 424,
426-27 (5th Cir. 2005); Kinder v. Purdy,
222 F.3d 209, 213-14 (5th Cir. 2000); Pack v.
Yusuff, 218 F.3d 448 (5th Cir. 2000).
Acevedo cannot challenge his sentence enhancement pursuant to
§ 2241, this court is without jurisdiction over the
petition. Accordingly, the undersigned recommends that the
petition be dismissed with prejudice.
parties are hereby notified that failure to file written
objections to the proposed findings, conclusions, and
recommendation contained within this report and
recommendation within fourteen (14) days after being served
with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the proposed factual
findings and legal conclusions accepted by the district
court. 28 U.S.C. ...