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