IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CLINTON LEMONT PETTAWAY, 

Case No. 3:14-cv-00994-SI 

Petitioner, 

v. 

WARDEN FEATHER, 

OPINION AND ORDER 

Respondent. 

Stephen R. Sady, Chief Deputy Federal Public Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

S. Amanda Marshall 

United States Attorney 

Natalie K. Wight, Assistant United States Attorney 

1000 SW Third Avenue, Suite 600 

Portland, OR 97204-2902 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 1 of 8
SIMON, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2241 asserting that the U.S. District Court for the 

Southern District of Alabama lacked authority to enhance his 

sentence for brandishing a firearm. For the reasons that follow, 

the Petition for Writ of Habeas Corpus (#1) is dismissed. 

BACKGROUND 

In 2008, a grand jury charged petitioner with using, 

possessing, or carrying a firearm in furtherance of his possession 

with the intent to distribute more than five grams of crack 

cocaine. Petitioner's Exhibit A. The grand jury also charged 

petitioner with possession of a firearm with an altered serial 

number. Id. A jury convicted petitioner of all counts, and the 

Government filed a motion asking the court to enhance his sentence 

by two years for brandishing his firearm in violation of 18 U.S.C. 

§ 924(c) (1) (A) (ii). Petitioner's Exhibit D, p. 4. The trial judge 

concluded, "The facts adduced at trial coupled with the information 

contained in the Presentence Report regarding the [conviction 

pursuant to guilty plea of Assault in the Third Degree in Alabama's 

state courts] does indicate that Mr. Pettaway brandished the weapon 

and used the weapon to assault [the victim] . So, I will grant the 

Government's motion of application of the brandishing provision of 

Title 18." Id at 7. 

2 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 2 of 8
Petitioner took a direct appeal to the Eleventh Circuit 

challenging his sentencing enhancement for brandishing his firearm. 

The Court of Appeals affirmed the trial court's decision: 

The Government clearly satisfied the 

brandishing prong as well, by demonstrating 

that Pettaway displayed the firearm or made 

its presence known in order to intimidate 

another, as the evidence at trial plainly 

demonstrated that Pettaway pistol-whipped the 

other man during a fight. See 18 U.S. C. 

§ 924 (c) (4). In addition, the sentencing 

enhancement was proper because the brandishing 

was done in the course of the underlying 

offense--possessing the firearm in furtherance 

of possessing with intent to distribute crack 

cocaine. Cf. Dean, 129 S.Ct. at 1854, 1856. 

In short, the district court did not err in 

applying the enhancement. 

Government Exhibit 5, United States v. Pettaway, 335 Fed. Appx. 

857, 858 (11th Cir. June 30, 2009). 

Petitioner did not petition the Supreme Court for certiorari, 

nor did he immediately seek relief pursuant to 28 U.S.C. § 2255. 

Approximately four years later, the Supreme Court decided Alleyne 

v. United States, 133 S.Ct. 2151 (2013) wherein it extended the 

reach of its decision in Apprendi v. New Jersey, 530 U.S. 466 

(2000) and held that any fact that increases a mandatory minimum 

sentence is an element of the offense that must be proven to a jury 

beyond a reasonable doubt. 1 133 S.Ct. at 2155. Believing his 

brandishing enhancement violated Alleyne, petitioner filed a 28 

1 Alleyne overruled the Supreme Court's prior decision in 

Harris v. United States, 536 U.S. 545 (2002) 

3 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 3 of 8
U.S.C. § 2255 motion in the Southern District of Alabama. Although 

petitioner's case fell outside of the Anti-terrorism and Effective 

Death Penalty's one-year statute of limitations, he argued that his 

case was timely because he filed it within one year of the Supreme 

Court's decision in Alleyne, and the court should apply that 

decision retroactively to his case. The District Court determined 

that petitioner did not establish that he was actually innocent, 

and further concluded that Alleyne did not apply retroactively to 

cases on collateral review. As a result, it dismissed the § 2255 

motion as untimely and denied petitioner's request for a 

certificate of appealability. Government's Exhibit 2. 

On June 19, 2014, petitioner filed this 28 U.S.C. § 2241 

habeas corpus case challenging the imposition of the two-year 

brandishing enhancement, claiming that it was neither contained 

within the indictment nor proven to the jury beyond a reasonable 

doubt. Respondent asks the court to deny relief on the Petition 

because: (1) the issue of brandishing was previously decided by 

another court, and is subject to the doctrine of finality; 

(2) petitioner fails to invoke savings clause jurisdiction because 

he does not state a claim of actual innocence; (3) the holding of 

Alleyne does not apply retroactively to cases on collateral review; 

and (4) even assuming petitioner could overcome all of these 

hurdles and establish Alleyne's retroactivity, he would be able to 

seek relief pursuant to § 2255 (h) (2), thus § 2255 would not be 

4 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 4 of 8
inadequate or ineffective so as to confer jurisdiction over this 

§ 2241 habeas action. 

DISCUSSION 

"A federal prisoner who seeks to challenge the legality of 

confinement must generally rely on a § 2255 motion to do so.'' 

Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012) However, 

under the "savings clause" or "escape hatch" of § 2255 (e), a 

federal inmate may seek relief pursuant to 28 U.S.C. § 2241 "if, 

and only if, the remedy under § 2255 is 'inadequate or ineffective 

to test the legality of his detention.'" Id (citing Stephens v. 

Herrera, 464 F.3d 895, 897 (9th Cir. 2006). 

A petitioner satisfies the savings clause of § 2255(e) where 

he: "(l) makes a claim of actual innocence, and (2) has not had an 

unobstructed procedural shot at presenting that claim." Stephens 

v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (internal quotation 

marks omitted) . The two factors to consider when assessing whether 

petitioner had an unobstructed procedural opportunity to present 

his claim of innocence are: (1) whether the legal basis for 

petitioner's claim did not arise until the conclusion of his direct 

appeal and first 28 U.S.C. § 2255 motion; and (2) whether the 

applicable law changed in any relevant way after the conclusion of 

the petitioner's first § 2255 motion. 

F.3d 952, 960 (9th Cir. 2008). 

5 - OPINION AND ORDER 

Harrison v. Ollison, 519 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 5 of 8
As previously noted, the Southern District of Alabama already 

determined that Alleyne does not apply retroactively to 

petitioner's case, and it rejected his claim of actual innocence. 

Several months later, petitioner filed the current action wherein 

he raises the same challenges. At the time petitioner filed this 

action, the Ninth Circuit had not yet addressed the issue of 

Alleyne's retroactivity. Assuming it is proper for petitioner to 

re-litigate these issues in a § 2241 habeas case in this District, 

"[a) new rule applies retroactively in a collateral proceeding only 

if (1) the rule is substantive or (2) the rule is a 'watershed 

rul[e) of criminal procedure' implicating the fundamental fairness 

and accuracy of the criminal proceeding." Whorton v. Bock ting, 54 9 

U.S. 406, 416 (2007) (citations omitted) . Subsequent to 

petitioner's filing of this case, the Ninth Circuit held that 

Alleyne does not involve a watershed rule of criminal procedure 

that applies retroactively to cases on collateral review. Hughes 

v. United States, 770 F.3d 814 (9th Cir. 2014). 

Petitioner asserts that the application of Alleyne to his case 

is not controlled by the procedural retroactivity principle, but 

rather the exception for retroactivity of substantive changes in 

the meaning of the statute. In this regard, he argues that "[a) 

judicial construction of a statute is an authoritative statement of 

what the statute meant before as well as after the decision of the 

6 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 6 of 8
case giving rise to that construction." Rivers v. Roadway Exp., 

Inc., 511 U.S. 298, 312-13 (1994). 

In Hughes, the Ninth Circuit specifically concluded that 

"[o]nly the second, procedural, exception is at issue here because 

Alleyne announced a procedural rule. See Alleyne, 133 S.Ct. at 

2164 (J. Sotomayor, J., concurring) (explaining that in Alleyne 

'procedural rules [were] at issue that do not govern primary 

conduct')." Hughes, 770 F.3d at 817. Accordingly, petitioner's 

argument in this case is unavailing. To the extent petitioner 

claims that Hughes was wrongly decided, it is not the province of 

this court to make such a determination. 

Because petitioner cannot avail himself of the Alleyne 

decision, he cannot demonstrate his actual innocence so as to bring 

this § 2241 habeas action under the savings clause of § 2255. 

Accordingly, the Petition is dismissed for lack of jurisdiction. 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

Ill 

7 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 7 of 8
CONCLUSION 

For the reasons identified above, the Petition for Writ of 

Habeas Corpus (#1) is dismissed. The court declines to issue a 

Certificate of Appealability on the basis that petitioner has not 

made a substantial showing of the denial of a constitutional right 

pursuant to 28 U.S.C. § 2253 (c) (2). 

IT IS SO ORDERED. 

DATCD 'hia _1:":_ day of ;anuary, '015~-~ ~~/liaJ~ 

Michael H. Simon 

United States District Judge 

8 - OPINION AND ORDER 

Case 3:14-cv-00994-SI Document 30 Filed 01/07/15 Page 8 of 8