UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE
CIVIL ACTION NO. 22-4-DLB
JOSE ANGEL TORRES-GUARDADO PETITIONER
v. MEMORANDUM OPINION AND ORDER
WARDEN, USP-Big Sandy RESPONDENT
*** *** *** *** Petitioner Jose Angel Torres-Guardado is a federal inmate currently confined at the United States Penitentiary (“USP”)-Big Sandy located in Inez, Kentucky. Proceeding without counsel, Torres-Guardado has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) and has paid the $5.00 filing fee (Doc. # 1-3). Thus, this matter is before the Court to conduct the initial screening required by 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).1 After reviewing the § 2241 petition and supporting material submitted by Torres- Guardado, the Court concludes that his § 2241 petition must be dismissed for lack of subject-matter jurisdiction. In June 2007, pursuant to a plea agreement with the United States, Torres- Guardado pled guilty in the United States District Court for the District of Montana to one count of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. United States v.
1 A petition will be denied “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). Torres-Guardado, No. 1:07-cr-022-SPW-1 (D. Mont. 2007). According to Torres- Guardado, the District Court determined that he was a Career Offender under U.S.S.G. § 4B1.1 based on Torres-Guardado’s two prior convictions for “crimes of violence,” a California robbery conviction and a Colorado conviction for attempted second-degree assault. (Doc. #1-1 at p. 5-6). In October 2007, Torres-Guardado was sentenced to a
term of imprisonment of 327 months. The Ninth Circuit affirmed Torres-Guardado’s sentence on direct appeal. See United States v. Torres-Guardado, No. 07-30415 (9th Cir., Sep 26, 2008) (Memorandum) In January 2009, Torres-Guardado filed a motion to alter, amend, or vacate sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, which was denied. Since that time, Torres-Guardado has filed several additional motions seeking relief from his sentence, all of which have been denied. United States v. Torres-Guardado, No. 1:07-cr- 022-SPW-1 (D. Mont. 2007). Torres-Guardado has now filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 in this Court, arguing that he was misclassified as a Career Offender because his “instant offense of conviction” (the conspiracy to distribute methamphetamine conviction) is no longer a “controlled substance offense”2 in light of United States v. Havis, 927 F.3d 382 (6th Cir. 2019) and United States v. Norman, 935 F.3d 232, 239 (4th Cir. 2019). However, the Court must dismiss Torres-Guardado’s § 2241 petition for lack of subject-matter jurisdiction because Torres-Guardado’s petition does not meet the
2 U.S.S.G. § 4B1.1(a) provides that “[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” See U.S.S.G. § 4B1.1(a). requirements to challenge his sentence in a § 2241 petition filed pursuant to the “savings clause” provision of 28 U.S.C. § 2255(e). See Taylor v. Owens, 990 F.3d 493 (6th Cir. 2021). While 28 U.S.C. § 2241 “grants federal courts the authority to issue writs of habeas corpus to prisoners whose custody violates federal law,” Taylor, 990 F.3d at 495, Section
2441’s applicability is severely restricted by 28 U.S.C. § 2255. Id. “[S]ection 2241 typically facilitates only challenges to ‘the execution or manner in which the sentence is served’ – those things occurring within the prison.” Id. (quoting Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (per curiam)). In contrast, “section 2255 now serves as the primary means for a federal prisoner to challenge his conviction or sentence – those things that were ordered in the sentencing court.” Taylor, 990 F.3d at 495. Thus, a federal prisoner generally may not use a § 2241 petition to challenge his conviction or the enhancement of his sentence. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Rather, a prisoner who wishes to challenge the legality of his conviction or
sentence must file a motion under § 2255 in the court that sentenced him. Id. (explaining the distinction between a § 2255 motion and a § 2241 petition). The “savings clause” of 28 U.S.C. § 2255(e) creates an extraordinarily narrow exception to the prohibition against challenging a conviction or sentence in a § 2241 petition, allowing such a petition if the remedy afforded by § 2255 is “inadequate or ineffective” to test the legality of the prisoner’s detention. Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004). However, a motion under § 2255 is not “inadequate or ineffective” simply because the prisoner’s time to file a § 2255 motion has passed; he did not file a § 2255 motion; or he did file such a motion and was denied relief. Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002). Rather, to properly invoke the savings clause to challenge a sentence in a § 2241 petition, a petitioner must show that, after the petitioner’s conviction became final, the United States Supreme Court issued a retroactively applicable decision establishing that – as a matter of statutory interpretation – a prior conviction used to enhance his or her federal sentence no longer qualifies as a
valid predicate offense. Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016).
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE
CIVIL ACTION NO. 22-4-DLB
JOSE ANGEL TORRES-GUARDADO PETITIONER
v. MEMORANDUM OPINION AND ORDER
WARDEN, USP-Big Sandy RESPONDENT
*** *** *** *** Petitioner Jose Angel Torres-Guardado is a federal inmate currently confined at the United States Penitentiary (“USP”)-Big Sandy located in Inez, Kentucky. Proceeding without counsel, Torres-Guardado has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) and has paid the $5.00 filing fee (Doc. # 1-3). Thus, this matter is before the Court to conduct the initial screening required by 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).1 After reviewing the § 2241 petition and supporting material submitted by Torres- Guardado, the Court concludes that his § 2241 petition must be dismissed for lack of subject-matter jurisdiction. In June 2007, pursuant to a plea agreement with the United States, Torres- Guardado pled guilty in the United States District Court for the District of Montana to one count of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. United States v.
1 A petition will be denied “if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). Torres-Guardado, No. 1:07-cr-022-SPW-1 (D. Mont. 2007). According to Torres- Guardado, the District Court determined that he was a Career Offender under U.S.S.G. § 4B1.1 based on Torres-Guardado’s two prior convictions for “crimes of violence,” a California robbery conviction and a Colorado conviction for attempted second-degree assault. (Doc. #1-1 at p. 5-6). In October 2007, Torres-Guardado was sentenced to a
term of imprisonment of 327 months. The Ninth Circuit affirmed Torres-Guardado’s sentence on direct appeal. See United States v. Torres-Guardado, No. 07-30415 (9th Cir., Sep 26, 2008) (Memorandum) In January 2009, Torres-Guardado filed a motion to alter, amend, or vacate sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, which was denied. Since that time, Torres-Guardado has filed several additional motions seeking relief from his sentence, all of which have been denied. United States v. Torres-Guardado, No. 1:07-cr- 022-SPW-1 (D. Mont. 2007). Torres-Guardado has now filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 in this Court, arguing that he was misclassified as a Career Offender because his “instant offense of conviction” (the conspiracy to distribute methamphetamine conviction) is no longer a “controlled substance offense”2 in light of United States v. Havis, 927 F.3d 382 (6th Cir. 2019) and United States v. Norman, 935 F.3d 232, 239 (4th Cir. 2019). However, the Court must dismiss Torres-Guardado’s § 2241 petition for lack of subject-matter jurisdiction because Torres-Guardado’s petition does not meet the
2 U.S.S.G. § 4B1.1(a) provides that “[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” See U.S.S.G. § 4B1.1(a). requirements to challenge his sentence in a § 2241 petition filed pursuant to the “savings clause” provision of 28 U.S.C. § 2255(e). See Taylor v. Owens, 990 F.3d 493 (6th Cir. 2021). While 28 U.S.C. § 2241 “grants federal courts the authority to issue writs of habeas corpus to prisoners whose custody violates federal law,” Taylor, 990 F.3d at 495, Section
2441’s applicability is severely restricted by 28 U.S.C. § 2255. Id. “[S]ection 2241 typically facilitates only challenges to ‘the execution or manner in which the sentence is served’ – those things occurring within the prison.” Id. (quoting Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999) (per curiam)). In contrast, “section 2255 now serves as the primary means for a federal prisoner to challenge his conviction or sentence – those things that were ordered in the sentencing court.” Taylor, 990 F.3d at 495. Thus, a federal prisoner generally may not use a § 2241 petition to challenge his conviction or the enhancement of his sentence. See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Rather, a prisoner who wishes to challenge the legality of his conviction or
sentence must file a motion under § 2255 in the court that sentenced him. Id. (explaining the distinction between a § 2255 motion and a § 2241 petition). The “savings clause” of 28 U.S.C. § 2255(e) creates an extraordinarily narrow exception to the prohibition against challenging a conviction or sentence in a § 2241 petition, allowing such a petition if the remedy afforded by § 2255 is “inadequate or ineffective” to test the legality of the prisoner’s detention. Truss v. Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004). However, a motion under § 2255 is not “inadequate or ineffective” simply because the prisoner’s time to file a § 2255 motion has passed; he did not file a § 2255 motion; or he did file such a motion and was denied relief. Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002). Rather, to properly invoke the savings clause to challenge a sentence in a § 2241 petition, a petitioner must show that, after the petitioner’s conviction became final, the United States Supreme Court issued a retroactively applicable decision establishing that – as a matter of statutory interpretation – a prior conviction used to enhance his or her federal sentence no longer qualifies as a
valid predicate offense. Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir. 2016). Thus, under Hill, a prisoner seeking to challenge his sentence in a § 2241 petition filed pursuant to § 2255(e) must show: “(1) a case of statutory interpretation, (2) that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.” Hill, 836 F.3d at 595. The retroactive case of statutory interpretation upon which the petitioner relies must be a United States Supreme Court decision, not a decision from a United States Court of Appeals. See id. at 600 (limiting its decision to cases involving “a subsequent, retroactive change in statutory
interpretation by the Supreme Court”). See also Hueso v. Barnhart, 948 F.3d 324 (6th Cir. 2020) (holding that a prisoner may not seek habeas relief under § 2241 based solely on a federal circuit court case; rather, the retroactive case of statutory interpretation on which the prisoner relies must come from the Supreme Court). In addition, “a federal prisoner cannot bring a claim of actual innocence in a § 2241 petition through the saving clause without showing that he had no prior reasonable opportunity to bring his argument for relief.” Wright v. Spaulding, 939 F.3d 695, 705 (6th Cir. 2019). Because the savings clause of § 2255(e) is a jurisdictional bar that a petitioner must clear prior to bringing a challenge to his conviction or sentence in a § 2241 proceeding, the failure to do so mandates dismissal of the § 2241 petition for lack of subject-matter jurisdiction. Taylor, 990 F.3d at 499-500 (“Unless [the petitioner] proves that a section 2255 motion is inadequate or ineffective to challenge his sentence, no court may entertain his application for a writ of habeas corpus under section 2241.”). Torres-Guardado does not meet these requirements because he does not rely on
a retroactive change in statutory interpretation by the Supreme Court that is applicable to his case, as is required to proceed with his claim in a § 2241 petition via the savings clause of § 2255(e). See Hill, 836 F.3d at 600; Hueso, 948 F.3d at 326. Torres-Guardado relies on the decisions of the Sixth Circuit Court of Appeals in Havis and the Fourth Circuit Court of Appeals in Norman. (Doc. # 1-1 at p. 10-11). However, neither of these cases are Supreme Court decisions. In Hueso, the Sixth Circuit made clear that “[i]n addition to whatever else our reasonable-opportunity standard demands, it requires a Supreme Court decision that adopts a new interpretation of a statute after the completion of the initial § 2255 proceedings.” Hueso, 948 F.3d at 333 (emphasis added).
Because Torres-Guardado does not meet the requirements to proceed in this matter via the savings clause of § 2255(e), this Court may not entertain his § 2241 petition. Accordingly, Torres-Guardado’s § 2241 petition must be dismissed for lack of subject- matter jurisdiction. See Taylor, 990 F.3d at 496. Accordingly, IT IS ORDERED as follows: (1) Torres-Guardado’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. #1) is DISMISSED for lack of subject-matter jurisdiction. (2) This action is STRICKEN from the Court’s docket. (3) A corresponding Judgment will be entered this date. This 31st day of January, 2022. Sea . Signed By: Wiz David L. Bunning Db “Sims ~— United States District Judge
KADATA\ORDERS\PSO Orders\7-22-004 Screening Memorandum (2241).docx