United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. The matter is before the court for a
preliminary review under 28 U.S.C. § 2243, which
provides that the court need not seek a response from the
respondent when it is clear on the face of the petition that
petitioner is not entitled to relief.
pled guilty in the United States District Court for the
District of Maryland to conspiracy to distribute and possess
with intent to distribute phencyclidine, cocaine base, and
heroin. United States v. Braxton, No.
8:12-CR-86-RWT-2 (D. Md. September 24, 2012). On April 1,
2013 he was sentenced to a term of 324 months imprisonment.
Id. (D.E. 305). Petitioner appealed, and his appeal
was dismissed by the Fourth Circuit on July 3, 2014.
Id. (D.E. 311, 400). On November 24, 2014,
petitioner filed a motion to vacate, correct, or modify his
sentence pursuant to 28 U.S.C. § 2255. Id.
(D.E. 425). Petitioner's § 2255 motion was denied,
and the Fourth Circuit affirmed this denial. United
States v. Braxton, 631 F. App'x 161 (4th Cir. 2016).
Petitioner then filed a motion to reduce sentence pursuant to
18 U.S.C. § 3582(c)(2). Braxton, No. 8:12-
CR-86-RWT-2 (D. Md. April 27, 2017). This motion was allowed,
and petitioner's term of incarceration was reduced to 291
months. Id. (D.E. 492, 493).
April 27, 2017, petitioner filed the instant pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 arguing that his sentencing is illegal under
Mathis v. United States, 133 S.Ct. 2243
petitioner filed his claim under 28 U.S.C. § 2241, he is
in fact attacking the legality of, rather than the execution
of, his conviction and sentence. The legality of one's
sentence must be challenged under 28 U.S.C. § 2255
unless “the remedy by motion [under § 2255] is
inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255; see In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). A
procedural impediment to § 2255 relief, such as the
statute of limitations or the rule against successive
petitions, does not render § 2255 review
“inadequate” or “ineffective.”
Id. at 1194, n. 5.
Fourth Circuit has examined the prerequisites for finding
that § 2255 is an inadequate or ineffective remedy.
See In re Jones, 226 F.3d 328, 333-34 (4th Cir.
2000). In Jones, the court held that:
§ 2255 is inadequate and ineffective to test the
legality of a conviction when: (1) at the time of the
conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to
the prisoner's direct appeal and first § 2255
motion, the substantive law changed such that the conduct of
which the prisoner was convicted is deemed not to be
criminal; and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of
petitioner is unable to meet the second prong of the
Jones test because he has not alleged that the
conduct for which he was convicted is no longer criminal.
Moreover, Mathis is not a new rule of law applicable
retroactively on collateral review. See,
e.g., Mathis, 136 S.Ct. at 2257 (“Our
precedents make this a straightforward case. For more than 25
years, we have repeatedly made clear that application of ACCA
involves, and involves only, comparing elements.”);
Dawkins v. United States, 829 F.3d 549, 551 (7th
Cir. 2016) (holding Mathis did not announce a new
rule of constitutional law made retroactive by the Supreme
Court); United States v. Taylor, 672 Fed.Appx. 860,
2016 WL 7093905, at *4 (10th Cir. 2016) (Mathis did
not announce a new rule of law); Adams v. United
States, 2017 WL 1040346 at *3 (D. Maine 2017)
(Mathis does not apply retroactively as it did not
announce a new substantive rule applicable to cases on
collateral review); Blackwell v. United States, 2016
WL 5849384, at *4-5 (W.D.Va. 2016) (Mathis did not
announce a newly recognized constitutional right).
Petitioner's reliance on Mathis does not aid him
in fulfilling the Jones requirements, which is a
necessary prerequisite to demonstrate whether relief under
§ 2241, through § 2255(e)'s savings clause, is
appropriate. Mathis, 136 S.Ct. at 2257; Shealey
v. Mosely, No. CV 4:17-1653-JFA-TER, 2017 WL 3773143, at
*3 (D.S.C. July 20, 2017), report and
recommendation adopted, No. CV 4:17-1653-JFA, 2017
WL 3730559 (D.S.C. Aug. 30, 2017). Because petitioner has not
demonstrated that § 2255 is an inadequate or ineffective
remedy, he may not proceed on his § 2241 claim.
court cannot convert this § 2241 petition into a §
2255 petition because petitioner previously filed such a
petition. A second or successive § 2255 petition may not
be brought prior to the United States Court of Appeals for
the Fourth Circuit certifying that the new petition contains
either newly discovered evidence or relies upon “a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255; see United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
Petitioner does not allege that he has obtained such
certification. Accordingly, he may not proceed with this
claim pursuant to 28 U.S.C. § 2241, and this action is
DISMISSED without prejudice.
reviewing the claims presented in the habeas petition in the
light of the applicable standard, the court determines that
reasonable jurists would not find the court's treatment
of any of petitioner's claims debatable or wrong, and
none of the issues deserve encouragement to proceed further.