United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge
September 23, 2019, Magistrate Judge Leslie A. Bowman issued
a Report and Recommendation (Doc. 21) recommending that this
Court dismiss Petitioner Terrance Smith's Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc.
1) for lack of jurisdiction. Petitioner filed an Objection on
October 7, 2019. (Doc. 22.) Respondent filed a Response to
the Objection on October 21, 2019. (Doc. 23.) For the
following reasons, Petitioner's Objection will be
overruled, the Report and Recommendation will be adopted, and
the § 2241 petition will be denied.
Standard of Review
district judge must “make a de novo determination of
those portions” of a magistrate judge's
“report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The advisory committee's notes to Rule
72(b) of the Federal Rules of Civil Procedure state that,
“[w]hen no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation” of
a magistrate judge. Fed.R.Civ.P. 72(b) advisory
committee's note to 1983 addition. See also Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)
(“If no objection or only partial objection is made,
the district court judge reviews those unobjected portions
for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
18, 2003, Petitioner Terrance Smith was convicted in the
State of Virginia on four counts relating to the trafficking
of cocaine, heroin, and other narcotics. United States v.
Smith, 2017 WL 2837144, at *1 (E.D. Va. June 30, 2017),
appeal dismissed, 714 Fed.Appx. 310 (4th Cir. 2018),
cert. denied, 139 S.Ct. 375 (2018). He received a
sentence of 360 months of incarceration as a “career
offender” pursuant to U.S.S.G. § 4B1.1.
Id. Petitioner appealed his convictions to the
Fourth Circuit, which affirmed the convictions on March 21,
2006. United States v. Smith, 441 F.3d 254, 273 (4th
Petitioner filed multiple petitions challenging his sentence
pursuant to 28 U.S.C. § 2255. The first § 2255
petition was filed on July 12, 2007 and was dismissed.
Smith v. United States, 2014 WL 12710241, at *1
(E.D. Va. Sept. 16, 2014). The district court construed
Smith's subsequent motion to dismiss as a second §
2255 petition and dismissed it on June 21, 2012. Id.
A third § 2255 petition was filed on July 28, 2014,
wherein Petitioner challenged his career offender sentencing
enhancement pursuant to U.S.S.G. § 4B1.1. Id.
The court dismissed the third petition because Petitioner had
failed to obtain authorization from the Fourth Circuit to
file a successive petition, as required by 28 U.S.C. §
17, 2016, the Fourth Circuit granted Smith permission to file
a successive § 2255 petition in light of Johnson v.
United States, 135 S.Ct. 2551 (2015), which held that
the residual clause of the Armed Career Criminal Act
(“ACCA”) violates due process. Smith,
2017 WL 2837144, at *1. The petition was ultimately denied as
untimely because Petitioner had “not cited a rule
recognized by the Supreme Court and made retroactively
applicable to his case.” Id. at *3.
pending Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 was filed on March 4, 2019. (Doc. 1.)
Smith claims he was illegally sentenced as a career offender
pursuant to U.S.S.G. § 4B1.1 in light of Mathis v.
United States, 136 S.Ct. 2243 (2016), and that he has
not had an “unobstructed procedural shot” at
raising that claim. (Id.) Respondent filed the
pending Motion to Dismiss on June 27, 2019. (Doc. 11.)
Respondent argues that the court lacks jurisdiction over the
§ 2241 petition because Petitioner has not satisfied the
savings clause of 28 U.S.C. § 2255(e), which allows a
challenge to an improper sentence in a § 2241 petition.
(Id. at 2.) Petitioner filed a Response on July 24,
2019 (Doc. 18), Respondent filed a Reply on August 8, 2019
(Doc. 19), and Petitioner filed a sur-reply on August 1, 2019
Magistrate Judge issued the Report and Recommendation
(“R&R”) on September 23, 2019. (Doc. 21.) The
R&R recommends that this court grant Respondent's
Motion to Dismiss (Doc. 11) and dismiss Petitioner's
§ 2241 Petition (Doc. 1) for lack of jurisdiction (Doc.
21 at 6). The R&R finds that Petitioner's challenge
to his sentence may not be raised in a § 2241 Petition
and that Petitioner has not satisfied the “escape
hatch” of 28 U.S.C. § 2255(e) because he has not
shown that he lacked an unobstructed procedural shot of
presenting a claim of actual innocence, as required to show
that a § 2255 motion is inadequate or ineffective.
(Id. at 3-6.)
filed an Objection to the R&R on October 7, 2019. (Doc.
22.) In his Objection, Petitioner argues that “the
Magistrate Judge is incorrect that Smith could have raised
his Mathis claim on direct appeal or in his first
§ 2255 motion.” (Id. at 2.) He contends
that he has satisfied the escape hatch exception because his
claim is based on a new Supreme Court statutory
interpretation. (Id.) He further contends that he is
entitled to challenge his career offender determination in
his § 2241 Petition because he was sentenced prior to
United States v. Booker, 543 U.S. 220 (2005).
(Id.) . . . .
motion under 28 U.S.C. § 2255 is the exclusive means by
which a federal prisoner may test the legality of his
detention, and  restrictions on the availability of a
§ 2255 motion cannot be avoided through a petition under
 § 2241.” Stephens v. Herrera, 464 F.3d
895, 897 (9th Cir. 2006) (internal citations omitted). The
one exception to this rule is the escape hatch of §
2255. Stephens, 463 F.3d at 897. Under the escape
hatch, “a federal prisoner may file a § 2241
petition if, and only if, the remedy under § 2255 is
inadequate and ineffective to test the legality of his
detention.” Nettles v. Grounds, 830 F.3d 922,
931 (9th Cir. 2016). This occurs when a prisoner “(1)
makes a claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim.”
Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir.
2012). A § 2255 petition is not an “inadequate or
ineffective remedy” simply because a petitioner failed
to bring his claim in his first § 2255 petition and is
procedurally barred from filing another. Moore v.
Reno, 185 F.3d 1054, 1055 (9th Cir. 1999).
petitioner has not had an unobstructed procedural shot to
pursue his claim if the claim “did not become available
until after a federal court decision.” Harrison v.
Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (internal
quotation omitted). Courts consider: “(1) whether the
legal basis for petitioner's claim did not arise until
after he had exhausted his direct appeal and first §
2255 motion and (2) whether the law changed in any way
relevant to petitioner's claim after the first §
2255 motion.” Harrison, 519 F.3d at 960. To
establish unavailability, “[a]n intervening court
decision must effect a material change in the applicable
law[.]” Alaimalo v. United ...