1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOEL ELLIOTT, No. 2:24-CV-1651-DMC-P 12 Petitioner, ORDER 13 v. And 14 SALMONSON, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2241. Pending before the Court are: (1) Respondent’s motion to 19 dismiss, ECF No. 10; (2) Petitioner’s motion for bail pending appeal, ECF No. 16; and (3) 20 Petitioner’s motion for sanctions, ECF No. 18. 21 22 I. BACKGROUND 23 A. Petitioner’s Petition for Writ of Habeas Corpus 24 Petitioner filed the petition for writ of habeas corpus on June 10, 2024. See ECF 25 No. 1. Petitioner argues that “under current law I am actually innocent of my 30 year 924 26 (c)(1)4(B)(ii) conviction in violation of constitution and/or non-retroactive intervening change in 27 law.” Id. at 3. Petitioner contends that in Borden v. United States, the Supreme Court held that 28 “offenses that can be committed with a mens rea of recklessness can not be deemed violent and 1 therefore can not support a 924 (c) conviction.” Id. at 7. According to Petitioner, he was 2 convicted of 844 (f)(1) and (f)(2) and the mens rea requirement in that statute is “malicious,” 3 which the Tenth Circuit has held includes reckless and intentional acts. See id. Petitioner 4 contends that because his underlying conviction was for a crime with a mens rea that could be 5 merely reckless, sentencing according to 924 (c)(1)4(B)(ii) violates the Supreme Court holding in 6 Borden v. United States. See id. Petitioner concedes “the Borden ruling is non retroactive” but 7 argues the “decision [] alters the substantive reach of a federal statute.” Id. 8 Additionally, Petitioner contends this claim is properly brought under § 2241 9 because the decision in Borden v. United States was made after he filed his § 2255 habeas, 10 “making the [§ 2241] escape hatch the only route available to me.” Id. Petitioner then asserts that 11 the “non-retroactive intervening change in law does not satisfy the criteria of 2244 for successive 12 2255 and I have not had nor will I ever get an opportunity to present my actual innocence claim in 13 a 2255 motion.” Id. at 8. 14 According to Petitioner, the District Court in Wyoming denied Petitioner’s claims 15 under Borden and then, when Petitioner appealed that decision, the Tenth Circuit vacated the 16 District Court’s decision and remanded “with instructions to vacate for lack of jurisdiction, due to 17 my claims not being cognizable on 2nd successive 2255.” Id. Petitioner contends that the Tenth 18 Circuit’s decision to not issue a certificate of appealability to permit Petitioner to raise his claims 19 under §2255 and subsequent determination that without a certificate of appealability, Petitioner 20 could not advance his §2255 claims, constitute “obstruction.” Id. Petitioner believes “it is 21 fundamentally unfair to not allow me the opportunity to litigate my claims of actual innocence 22 and take advantage of new laws while others who are indicted after changes in law can take 23 advantage of them.” Id. 24 B. Respondent’s Motion to Dismiss 25 Respondent filed a motion to dismiss and response to petition on October 24, 26 2025. See ECF No. 10. Respondent argues: (1) the Tenth Circuit Court of Appeals correctly 27 determined that Borden v. United State “is not material” to Petitioner’s conviction; (2) Borden is 28 “merely a case of later statutory interpretation and did not announce a new rule of constitutional 1 law authorizing habeas review;” and (3) pursuant to Jones v. Hendrix, 599 U.S. 465 (2023), 2 Petitioner’s § 2241 petition “is an unauthorized end-run around successive 28 U.S.C. § 2255(h) 3 collateral attack,” and therefore, this Court lacks jurisdiction over the petition. Id. at 3-4. 4 Attached to Respondent’s motion to dismiss is the verdict form from Petitioner’s 5 underlying conviction and Petitioner does not challenge its’ authenticity. See ECF No. 10-1, pgs. 6 27-29. The jury verdict form indicates the jury found Petitioner guilty of: (1) Count 1, 18 U.S. 7 Code § 844 (f) (1) and (f)(2), committed intentionally and deliberately; (2) Count 2, 18 U.S. Code 8 § 924 (c)(1)(A) and (B)(ii); Count Three, 26 U.S. Code § 5861 (d); and Count 4, 18 U.S. Code § 9 1623 (a). See id. 10 As both parties acknowledged, the Tenth Circuit previously dismissed Petitioner’s 11 second § 2255 motion concluding that because Petitioner failed to get authorization from the 12 Tenth Circuit for such motion, the District Court lacked jurisdiction over Petitioner’s claim. See 13 United States v. Elliott, No. 22-8046, 2023 U.S. App. LEXIS 16256 (10th Cir. June 27, 2023). 14 The Tenth Circuit continued the analysis:
15 Furthermore, even were Mr. Elliott to request authorization from this court to file a successive § 2255 motion claiming his conviction was erroneous under 16 Borden, we could not authorize such a motion because Borden did not announce a new rule of constitutional law as required by § 2255(h)(2). See Jones v. United 17 States, 36 F.4th 974, 986 (9th Cir. 2022) ("Borden did not announce a new 'constitutional' rule."); United States v. Hanner, 32 F.4th 430, 436 (5th Cir. 2022) 18 ("Borden 'did not announce a new rule of constitutional law but instead addressed a question of statutory construction.'" (quoting In re Rodriguez, 18 F.4th 841 (5th 19 Cir. 2021))). As the Supreme Court recently reiterated, "§ 2255(h) specifies the two circumstances in which a second or successive collateral attack on a federal 20 sentence is available, and those circumstances do not include an intervening change in statutory interpretation." Jones v. Hendrix, 599 U.S. -- at 23 (2023) (slip 21 opinion). In Borden, the Supreme Court engaged in pure statutory construction, interpreting the elements clause phrase "against another," as used to modify "use 22 of force," to "demand[] that the perpetrator direct his action at, or target, another individual." Borden, 141 S. Ct. at 1825. The Court determined that reckless 23 conduct "is not aimed in that prescribed manner" and thus could not be included within the elements clause definition of violent felony. Id. Because Borden 24 addressed a question of statutory interpretation, rather than a new rule of constitutional law, we do not consider Mr. Elliott's argument that, if charged today, 25 his predicate offense of federal arson would not qualify as a crime of violence pursuant to Borden. To the extent the district court considered Mr. Elliott's claim 26 that the trial court erred according to Borden, we vacate the district court's order and remand with instructions to enter an order dismissing Mr. Elliott's Borden 27 claim for lack of jurisdiction.
28 Id. at 23-25. 1 C. Petitioner’s Additional Motions 2 On December 26, 2024, Petitioner filed a motion for bail, seeking release pending 3 the adjudication of his appeal. See ECF No. 16. 4 Petitioner filed a motion for sanctions, asserting that sanctions are appropriate 5 because Respondent failed to re-serve Petitioner in accordance with this Court’s Order. See ECF 6 No. 18. Prior to the motion for sanctions, Petitioner filed a motion directing Respondent to re- 7 serve the motion to dismiss, asserting that he was transferred to another institution and therefore 8 did not receive the motion to dismiss.
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOEL ELLIOTT, No. 2:24-CV-1651-DMC-P 12 Petitioner, ORDER 13 v. And 14 SALMONSON, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2241. Pending before the Court are: (1) Respondent’s motion to 19 dismiss, ECF No. 10; (2) Petitioner’s motion for bail pending appeal, ECF No. 16; and (3) 20 Petitioner’s motion for sanctions, ECF No. 18. 21 22 I. BACKGROUND 23 A. Petitioner’s Petition for Writ of Habeas Corpus 24 Petitioner filed the petition for writ of habeas corpus on June 10, 2024. See ECF 25 No. 1. Petitioner argues that “under current law I am actually innocent of my 30 year 924 26 (c)(1)4(B)(ii) conviction in violation of constitution and/or non-retroactive intervening change in 27 law.” Id. at 3. Petitioner contends that in Borden v. United States, the Supreme Court held that 28 “offenses that can be committed with a mens rea of recklessness can not be deemed violent and 1 therefore can not support a 924 (c) conviction.” Id. at 7. According to Petitioner, he was 2 convicted of 844 (f)(1) and (f)(2) and the mens rea requirement in that statute is “malicious,” 3 which the Tenth Circuit has held includes reckless and intentional acts. See id. Petitioner 4 contends that because his underlying conviction was for a crime with a mens rea that could be 5 merely reckless, sentencing according to 924 (c)(1)4(B)(ii) violates the Supreme Court holding in 6 Borden v. United States. See id. Petitioner concedes “the Borden ruling is non retroactive” but 7 argues the “decision [] alters the substantive reach of a federal statute.” Id. 8 Additionally, Petitioner contends this claim is properly brought under § 2241 9 because the decision in Borden v. United States was made after he filed his § 2255 habeas, 10 “making the [§ 2241] escape hatch the only route available to me.” Id. Petitioner then asserts that 11 the “non-retroactive intervening change in law does not satisfy the criteria of 2244 for successive 12 2255 and I have not had nor will I ever get an opportunity to present my actual innocence claim in 13 a 2255 motion.” Id. at 8. 14 According to Petitioner, the District Court in Wyoming denied Petitioner’s claims 15 under Borden and then, when Petitioner appealed that decision, the Tenth Circuit vacated the 16 District Court’s decision and remanded “with instructions to vacate for lack of jurisdiction, due to 17 my claims not being cognizable on 2nd successive 2255.” Id. Petitioner contends that the Tenth 18 Circuit’s decision to not issue a certificate of appealability to permit Petitioner to raise his claims 19 under §2255 and subsequent determination that without a certificate of appealability, Petitioner 20 could not advance his §2255 claims, constitute “obstruction.” Id. Petitioner believes “it is 21 fundamentally unfair to not allow me the opportunity to litigate my claims of actual innocence 22 and take advantage of new laws while others who are indicted after changes in law can take 23 advantage of them.” Id. 24 B. Respondent’s Motion to Dismiss 25 Respondent filed a motion to dismiss and response to petition on October 24, 26 2025. See ECF No. 10. Respondent argues: (1) the Tenth Circuit Court of Appeals correctly 27 determined that Borden v. United State “is not material” to Petitioner’s conviction; (2) Borden is 28 “merely a case of later statutory interpretation and did not announce a new rule of constitutional 1 law authorizing habeas review;” and (3) pursuant to Jones v. Hendrix, 599 U.S. 465 (2023), 2 Petitioner’s § 2241 petition “is an unauthorized end-run around successive 28 U.S.C. § 2255(h) 3 collateral attack,” and therefore, this Court lacks jurisdiction over the petition. Id. at 3-4. 4 Attached to Respondent’s motion to dismiss is the verdict form from Petitioner’s 5 underlying conviction and Petitioner does not challenge its’ authenticity. See ECF No. 10-1, pgs. 6 27-29. The jury verdict form indicates the jury found Petitioner guilty of: (1) Count 1, 18 U.S. 7 Code § 844 (f) (1) and (f)(2), committed intentionally and deliberately; (2) Count 2, 18 U.S. Code 8 § 924 (c)(1)(A) and (B)(ii); Count Three, 26 U.S. Code § 5861 (d); and Count 4, 18 U.S. Code § 9 1623 (a). See id. 10 As both parties acknowledged, the Tenth Circuit previously dismissed Petitioner’s 11 second § 2255 motion concluding that because Petitioner failed to get authorization from the 12 Tenth Circuit for such motion, the District Court lacked jurisdiction over Petitioner’s claim. See 13 United States v. Elliott, No. 22-8046, 2023 U.S. App. LEXIS 16256 (10th Cir. June 27, 2023). 14 The Tenth Circuit continued the analysis:
15 Furthermore, even were Mr. Elliott to request authorization from this court to file a successive § 2255 motion claiming his conviction was erroneous under 16 Borden, we could not authorize such a motion because Borden did not announce a new rule of constitutional law as required by § 2255(h)(2). See Jones v. United 17 States, 36 F.4th 974, 986 (9th Cir. 2022) ("Borden did not announce a new 'constitutional' rule."); United States v. Hanner, 32 F.4th 430, 436 (5th Cir. 2022) 18 ("Borden 'did not announce a new rule of constitutional law but instead addressed a question of statutory construction.'" (quoting In re Rodriguez, 18 F.4th 841 (5th 19 Cir. 2021))). As the Supreme Court recently reiterated, "§ 2255(h) specifies the two circumstances in which a second or successive collateral attack on a federal 20 sentence is available, and those circumstances do not include an intervening change in statutory interpretation." Jones v. Hendrix, 599 U.S. -- at 23 (2023) (slip 21 opinion). In Borden, the Supreme Court engaged in pure statutory construction, interpreting the elements clause phrase "against another," as used to modify "use 22 of force," to "demand[] that the perpetrator direct his action at, or target, another individual." Borden, 141 S. Ct. at 1825. The Court determined that reckless 23 conduct "is not aimed in that prescribed manner" and thus could not be included within the elements clause definition of violent felony. Id. Because Borden 24 addressed a question of statutory interpretation, rather than a new rule of constitutional law, we do not consider Mr. Elliott's argument that, if charged today, 25 his predicate offense of federal arson would not qualify as a crime of violence pursuant to Borden. To the extent the district court considered Mr. Elliott's claim 26 that the trial court erred according to Borden, we vacate the district court's order and remand with instructions to enter an order dismissing Mr. Elliott's Borden 27 claim for lack of jurisdiction.
28 Id. at 23-25. 1 C. Petitioner’s Additional Motions 2 On December 26, 2024, Petitioner filed a motion for bail, seeking release pending 3 the adjudication of his appeal. See ECF No. 16. 4 Petitioner filed a motion for sanctions, asserting that sanctions are appropriate 5 because Respondent failed to re-serve Petitioner in accordance with this Court’s Order. See ECF 6 No. 18. Prior to the motion for sanctions, Petitioner filed a motion directing Respondent to re- 7 serve the motion to dismiss, asserting that he was transferred to another institution and therefore 8 did not receive the motion to dismiss. See ECF No. 11. This Court ordered Respondent to re- 9 serve the motion to dismiss to Petitioner’s new address despite finding “the proofs of service 10 provided by Respondent indicate that the motion to dismiss was properly served on Petitioner at 11 his address of record.” ECF No. 14, pg. 1. 12 In his motion for sanctions, Petitioner requests that Respondent’s motion to 13 dismiss be stricken from the record for failure to re-serve Petitioner and that Federal Bureau of 14 Prison (FBOP) be ordered to offer Petitioner an alternative method for receiving legal mail. See 15 ECF No. 18, pg. 3. Petitioner contends that he never received any of this Court’s Orders nor 16 Respondent’s motion to dismiss at either Herlong FCI or Mendota FCI despite his family being 17 able to successfully send Petitioner such documents. See id. Petitioner requests sanctions that 18 “both punish the guilty parties and fix this ongoing problem.” Id. at 4. 19 20 II. DISCUSSION 21 A. Respondent’s Motion to Dismiss 22 The Supreme Court explicitly held in Jones that §2255(e)’s “does not permit a 23 prisoner asserting an intervening change in statutory interpretation to circumvent [the] restrictions 24 on second or successive §2255 motions by filing a §2241 petition.” Jones v. Hendrix, 599 U.S. 25 465, 471 (2023). Subsequently, the Ninth Circuit declined to address a Petitioner Swopes’ 26 challenge to his sentence under Borden, concluding that the District Court was correct in its’ 27 determination that the District Court lacked jurisdiction following Jones. Swopes v. Ciolli, No. 28 22-16054, 2023 U.S. App. LEXIS 22758, at *1-2 (9th Cir. Aug. 29, 2023). 1 Similarly, this Court finds that Petitioner is seeking to “circumvent [the] 2 restrictions on second or successive §2255 motions by filing a §2241 petition.” Jones, 599 U.S. at 3 471. Thus, this Court recommends dismissal for lack of jurisdiction over Petitioner’s claims. 4 B. Petitioner’s Motion for Sanctions 5 Petitioner is correct that the docket does not reflect that Respondent re-served the 6 motion to dismiss in accordance with the Court’s Order, ECF No. 14. While disobeying a Court 7 Order is sanctionable, the Court declines to strike the motion to dismiss from the record because, 8 as stated in the December 12, 2024, Order, Respondent did comply with service requirements. 9 See ECF No. 14. Given that Respondent complied with their initial service obligations, the 10 motion to dismiss will remain on the record. This Court will address Respondent’s failure to 11 comply with the December 12, 2024, order in a separate order. 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 Ill. CONCLUSION 2 Based on the foregoing, the undersigned orders and recommends as follows: 3 1. It is ORDERED that the Clerk of the Court is directed to randomly assign 4 | a District Judge to this case. 5 2. It is RECOMMENDED Respondent’s motion to dismiss, ECF No. 10 be 6 | GRANTED. 7 3. It is RECOMMENDED that Petitioner’s Motion for Bail, ECF No. 16, be 8 | DENIED as MOOT. 9 These findings and recommendations are submitted to the United States District 10 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 11 | after being served with these findings and recommendations, any party may file written 12 || objections with the court. Responses to objections shall be filed within 14 days after service of 13 || objections. Failure to file objections within the specified time may waive the right to appeal. See 14 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 16 | Dated: August 7, 2025 Ss..c0_, M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28