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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Aaron Neal Safford, 

Petitioner, 

v. 

William Lothrop, 

Respondent.

No. CV-18-00493-PHX-JAT

ORDER 

Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus filed 

pursuant to 28 U.S.C. § 2241 and a Report and Recommendation (“R&R”) on the Petition. 

Although the Petition was filed under 28 U.S.C. § 2241, Respondent argues, and the R&R 

concludes, that this Petition is not properly brought under the escape hatch of 28 U.S.C. § 

2255(e), and therefore, the Petition in this case should be construed as one under 28 U.S.C. 

§ 2255(a). (Doc. 34 at 29). Thus, because Petitioner was convicted in the Tenth Circuit, 

the R&R concludes that this Court does not have jurisdiction over this case. (Doc. 34 at 

32). 

I. Review of R&R 

This Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 

the district judge must review the magistrate judge’s findings and recommendations de 

novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 

1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 
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F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 

de novo review of factual and legal issues is required if objections are made, ‘but not 

otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 

1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 

[Magistrate Judge=s] recommendations to which the parties object.”). District courts are 

not required to conduct “any review at all . . . of any issue that is not the subject of an 

objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 

§ 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 

and recommendation] to which objection is made.”). 

The Court will review the portions of the R&R to which there was an objection de 

novo. However, the Court notes that Petitioner states in his objections, “Mr. Safford 

specifically asks the Court to conduct de novo review of the issues raised in the R&R.” 

(Doc. 35 at 1). Respondent appears to agree that this sentence is adequate to require a de 

novo review of the entire of the case. See Doc. 36 at 5 (“Respondent respectfully asks that, 

in conducting its de novo review of the R&R, the Court decline to accept the R&R’s 

discussion of the second prong, ....”). 

Both parties are incorrect, however, as to the scope of this Court’s review. The 

Court is reviewing de novo only the portions of the R&R to which there is an objection. 

Accord Martin v. Ryan, 2014 WL 5432133, *2 (D. Ariz. October 24, 2014) (“...when a 

petitioner raises a general objection to an R&R, rather than specific objections, the Court 

is relieved of any obligation to review it.”)(collecting cases); Warling v. Ryan, 2013 WL 

5276367, *2 (D. Ariz. September 19, 2013) (“A general objection has the same effect as 

would a failure to object”) (internal quotations and citation omitted). Thus, Petitioner’s 

request cannot overcome this Circuit’s en banc case law that this Court need only review 

de novo factual and legal issues to which there is an objection. See Reyna-Tapia, 328 F.3d 

at 1121. 

Thus, the Court will review de novo the portions of the R&R to which either party 

objected. 
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II. Background 

The R&R recounts to the procedural history of Petitioner’s case, and neither party 

objected to this portion of the R&R. (Doc. 34 at 1-5). Thus, the Court accepts it. 

As is relevant to the discussion below, the Court notes that Petitioner was sentenced 

in May 2010. Petitioner filed his first § 2255 petition in May 2011. Petitioner sought leave 

to file his second § 2255 petition in July 2014, which the Tenth Circuit denied. Petitioner 

sought leave to file his third § 2255 petition in April 2016. The Tenth Circuit granted 

Petitioner leave to file his third § 2255 petition (pursuant to Johnson) but ultimately denied 

relief. 

III. 28 U.S.C. § 2255 v. 28 U.S.C. § 2241 

The general rule is that 28 U.S.C. § 2255 provides the sole procedural mechanism 

by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 

F.3d 950, 953 (9th Cir. 2000). However, § 2255(e) provides an exception to this general 

rule in limited circumstances. 

IV. Escape Hatch 

The R&R recounts the law governing when the escape hatch under § 2255(e) is 

available, and neither party objected to this portion of the R&R. (Doc. 34 at 10-13). Thus, 

the Court accepts it. 

As is relevant to the discussion below, 

A § 2255 motion is inadequate or ineffective and thus “a § 2241 

petition is available under the ‘escape hatch’ of § 2255 when a petitioner (1) 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). 

(Doc. 34 at 13). 

A. Unobstructed Procedural Shot 

As the R&R states: 

“In determining whether a petitioner had an unobstructed procedural shot to pursue his claim, we ask whether petitioner’s claim ‘did not become available’ until after a federal court decision. In other words, we 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 that first § 2255 
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motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008). It is important to note that this standard does not mandate that the legal basis be a “new rule” or that it be one of “constitutional law,” as is required for second or successive 2255 motions pursuant to 28 U.S.C. § 2255(h)(2). Thus, this escape hatch standard is in this respect lower than the standard for successive motions. 

(Doc. 34 at 13). 

The R&R concludes that Petitioner did not have an unobstructed procedural shot at 

presenting his claim in the Tenth Circuit. (Doc. 34 at 13-18). Petitioner asks this Court to 

adopt this conclusion. (Doc. 35 at 2). Respondent objects to this conclusion. (Doc. 36 at 

5-8). 

 Initially, the R&R concludes that Petitioner is not precluded from the escape hatch 

merely because he did not raise these claims in a direct appeal or in the first § 2255 petition. 

(Doc. 34 at 13-17). Respondent objects to this conclusion arguing that properly exhausting 

the claim before the Tenth Circuit was required for the escape hatch to be available because 

the premise of the cases on which Petitioner now relies was available at the time of 

Petitioner’s opportunity to take a direct appeal and when he filed his first § 2255 petition. 

(Doc. at 36 at 5-8). The R&R rejects this argument because none of the cases on which 

Petitioner now relies had been decided at the time he could have taken a direct appeal or 

when he filed his first § 2255 petition; thus, the R&R concludes that it would have been 

futile to raise these claims. (Doc. 34 at 15). This Court agrees with the R&R up to this 

point that exhaustion via a direct appeal and/or a first § 2255 motion of a claim that had 

not yet been decided by the Supreme Court at that time of those filings and the Tenth 

Circuit law precluded such a claim at the time of those filings is not a mandatory 

prerequisite for the escape hatch to be available. 

 The R&R goes on to conclude Petitioner’s third § 2255 before the Tenth Circuit 

wherein he actually raised (and the Tenth Circuit decided) his Descamps,

1 Johnson,2

 and 

 

1 Descamps v. United States, 133 S.Ct. 2276 (2013). 

2 Johnson v. United States, 135 S.Ct. 2551 (2015). 
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Mathis3 claims was not an unobstructed procedural shot. (Doc. 34 at 17-18). The R&R’s 

reason for this conclusion lies in the distinction between the test for being permitted to 

bring a successive § 2255 and the test for bringing a petition under the escape hatch. 

Specifically, as stated above, bringing a successive § 2255 petition requires a showing that 

there was a new rule of constitutional law. Conversely, the escape hatch requires a showing 

that the legal basis for the claim did not arise until after a petitioner’s direct appeal and first 

§ 2255 proceeding concluded and that the law changed in a way relevant to petitioner’s 

claim after his first § 2255 motion was decided. (Doc. 34 at 13). 

This distinction is important in this case because the Supreme Court’s decision in 

Mathis is truly the basis of Petitioner’s claim. As the Tenth Circuit noted, Mathis has not 

been made retroactive to cases not on direct appeal (thus, it did not announce a new rule of 

constitutional law). Accordingly, Mathis did not qualify Petitioner for a successive § 2255 

petition.4

 However, Mathis can qualify as a legal basis for petitioner’s claim that there was 

a change in the law relevant to petitioner’s claim that arose after Petitioner’s first § 2255 

petition, which would mean Petitioner’s first § 2255 was not an unobstructed procedural 

shot to raise his Mathis claim. 

However, the R&R goes on to conclude that Petitioner’s third § 2255 petition can 

“count” as his unobstructed procedural shot under Harrison. (Doc. 34 at 17). Nonetheless, 

the R&R further concludes that Petitioner did not receive an unobstructed procedural shot 

in his third § 2255 petition because Petitioner’s Mathis claim, which the Tenth Circuit 

decided on a procedural ground, was not a basis to bring a successive § 2255 petition; thus, 

the Tenth Circuit did not consider the merits of Petitioner’s Mathis claim. (Doc. 34 at 18). 

 

3

 Mathis v. United States, 136 S.Ct. 2243 (2016). 

4

 This issue was litigated in Petitioner’s third § 2255 petition that Petitioner was permitted to file based on Johnson (which did apply a new rule of constitutional law retroactively). However, Petitioner is not entitled to relief under Johnson. Thus, he attempted to convert his Johnson claim to a Mathis claim. (Doc. 34 at 18 (“In his third 2255 proceeding, the Tenth Circuit described Petitioner’s motion as an attempt ‘to leverage the irrelevant Johnson decision to enable him to apply Mathis retroactively.’ (Exhibit F-3, Order 12/27/17.)”). 
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The question then is whether, for petitioner to obtain an unobstructed procedural 

shot to present a claim, the court considering the § 2255 motion must reach the merits of 

the claim. In considering this question in this case, this Court has assumed the following: 

1) Johnson is retroactive, but Petitioner is not entitled to relief under Johnson; 2) the Tenth 

Circuit was correct that Mathis is not retroactive; and 3) if a court were to reach the merits 

of Petitioner’s Mathis claim, Petitioner would be entitled to relief in the form of a shorter 

sentence. To attempt to reach the end result of a shorter sentence, Petitioner’s petition 

seems to assume that if a court allows an escape hatch § 2241 petition, the Court is no 

longer bound by the retroactivity requirement (assuming Petitioner can meet the actual 

innocence exception which the Court will discuss below). See (Doc. 1 at 16-22).5

This Court disagrees with the R&R that the Tenth Circuit’s failure to consider 

Petitioner’s Mathis claim on the merits means that Petitioner did not have an unobstructed 

procedural shot to raise his claims. In an analogous case, a district court concluded that 

the fact that Apprendi6 was decided after a petitioner’s conviction and was not retroactive 

(thus no court considered the merits of the claim) did not mean that the petitioner did not 

have an unobstructed procedural shot to bring his claim. See Lopera-Ochoa v. Sanders, 

No. CV 11-7084-DDP AGR, 2011 WL 7985824, at *2 (C.D. Cal. Oct. 4, 2011), report and 

recommendation adopted, No. CV 11-7084-DDP AGR, 2012 WL 2031134 (C.D. Cal. June 

5, 2012). Similarly, when a petitioner had litigated an Apprendi claim in the Eleventh 

Circuit as a request to file a successive § 2255 petition, then later made the same claim in 

the Ninth Circuit as a § 2241 petition, the district court held that the Eleventh Circuit 

denying leave to file the successive petition because Apprendi was not retroactive counted 

as an unobstructed procedural shot to raise the claim. Denson v. Ives, No. CV 14-04473 

DDP RZ, 2014 WL 6606667, at *2 (C.D. Cal. Nov. 19, 2014); Gamboa v. United States, 

 

5

 The Court may be mischaracterizing Petitioner’s claim, as it was not addressed in the 

R&R or objections. However, in reading the Petition, the Court did not locate any argument that Mathis is in fact retroactive, or that the Tenth Circuit erred in concluding otherwise. Thus, the Court presumes Petitioner is impliedly arguing that § 2241 overcomes 

the retroactivity requirement in some way. 

6

 Apprendi v. New Jersey, 530 U.S. 466 (2000). 
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No. CV 12-10266 DSF JC, 2015 WL 2154149, at *4 (C.D. Cal. May 4, 2015) (same for a 

petitioner who had filed a § 2255 petition in the Fifth Circuit). 

Thus, because Petitioner in this case litigated a Mathis claim (and a Johnson claim) 

in the Tenth Circuit as a successive § 2255 petition, he had an unobstructed procedural shot 

to raise his claims. The R&R will be rejected on this point and Respondent’s objection 

sustained to the extent specified herein. 

B. Actual Innocence 

Having concluded Petitioner had an unobstructed procedural shot to raise his claim 

in the Tenth Circuit, this Court need not reach the question of whether Petitioner can show 

actual innocence to qualify for the § 2255(e) escape hatch. Nonetheless, the Court will 

consider this alternative theory for not applying the escape hatch because Petitioner 

objected to the R&R’s recommendation that the Court find it lacks jurisdiction over his § 

2241 petition because Petitioner cannot show actual innocence. 

The R&R recounted the law governing actual innocence, and neither party objected 

to this portion of the R&R. Accordingly, the Court accepts it. 

Specifically, 

In the Ninth Circuit, a claim of actual innocence for purposes of the escape hatch of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United States, 523 U.S. 614 (1998). Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). “To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Id. (quoting Bousley, 523 U.S. at 623). “[A]ctual innocence’ means factual innocence, not mere 

legal insufficiency.” Bousley, 523 U.S. at 623. 

(Doc. 34 at 19). 

 It is an open question in the Ninth Circuit “whether a petitioner may ever be actually 

innocent of a noncapital sentence for the purpose of qualifying for the escape hatch.” 

Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012). Ultimately, the R&R concludes that 

claims of actual innocence of noncapital sentences cannot qualify for the escape hatch, and 

thus, Petitioner’s claim fails. (Doc. 34 at 28). Petitioner objects to this conclusion. 

 Regardless, however, of whether noncapital sentences can qualify for the escape 

hatch, the Ninth Circuit Court of Appeals has held, “the purely legal argument that [] 
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petitioner was wrongly classified as a career offender under the Sentencing Guidelines is 

not cognizable as a claim of actual innocence under the escape hatch.” Marrero, 682 F.3d 

at 1195. see also Dorise v. Matevousian, 692 Fed. App’x 864, 865 (9th Cir. 2017). In other 

words, Marrero rejected an “actual innocence” claim that was a “purely legal claim that 

had nothing to do with factual innocence.” Marrero, 682 F.3d at 1193. 

 In this case, Petitioner’s claim is clearly a legal claim and not a claim of factual 

innocence. Petitioner points to no new evidence, but only new law. (Doc. 34 at 28). 

Because Petitioner has no claim of factual innocence, even if the escape hatch is available 

to claims of actual innocence of a noncapital sentence, he would not qualify. Therefore, 

Petitioner cannot qualify for the escape hatch. 

 The R&R will be accepted on this point and Petitioner’s objections are overruled. 

V. Transfer or Dismissal 

 As a result of the foregoing, the Petition in this case is properly construed as being 

under § 2255 and not § 2241. According this Court lacks jurisdiction over the Petition. 

 The R&R recommends that this Court dismiss this case without prejudice for lack 

of jurisdiction rather than transfer it to the Tenth Circuit. (Doc. 34 at 31). Neither party 

objected to this recommendation. Accordingly, the Court accepts it. 

VI. Certificate of Appealability 

To the extent the currently pending petition is properly brought pursuant to 28 

U.S.C. § 2241, no certificate of appealability is required to appeal. See Forde v. U.S. 

Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997). However, when a petition is brought 

under § 2241, but is properly characterized as a petition under 28 U.S.C. § 2255, this Court 

must determine whether a certificate of appealability is appropriate. Porter v. Adams, 244 

F.3d 1006, 1007 (9th Cir. 2001) (order). 

 Here, the Court has determined that this Petition is properly construed as one under 

28 U.S.C. § 2255; thus, this Court will determine whether to issue a certificate of 

appealability. “When the district court denies a habeas petition on procedural grounds 

without reaching the prisoner's underlying constitutional claim, a COA should issue when 
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the prisoner shows, at least, that jurists of reason would find it debatable whether the 

petition states a valid claim of the denial of a constitutional right and that jurists of reason 

would find it debatable whether the district court was correct in its procedural ruling.” 

Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, it is not debatable that Petitioner 

cannot make a showing of actual innocence. Therefore, a certificate of appealability will 

be denied.

VII. Conclusion 

 IT IS ORDERED that the Report and Recommendation (Doc. 34) is accepted or 

rejected as specified above; the objections (Docs. 35 and 36) are sustained or overruled as 

specified above; the Petition is denied and dismissed, without prejudice for lack of 

jurisdiction, and the Clerk of the Court shall enter judgment accordingly. 

IT IS FURTHER ORDERED that to the extent the Court of Appeals construes 

this as a Petition under 28 U.S.C. § 2255, jurists of reason would not find this Court’s 

procedural ruling debatable, therefore a certificate of appealability is denied. 

 Dated this 11th day of February, 2019.