UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

BLAKE SANDLAIN, Petitioner - Appellant,

v. NICOLE ENGLISH, Respondent – Appellee. No. 17-3152 (D.C. No. 5: 17-CV-03103-JWL) (D. Kan.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MORITZ , Circuit Judge

In 2015, Blake Sandlain pled guilty to possession with intent to distribute a controlled substance and to being a felon in posse ssion of a firearm. That occurred in the

* Oral argument would not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ). We have decided this case on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisi ons is not encouraged, but not prohibited. Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Any citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### October 5, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - United States District Court fo r the Eastern District of Mi chigan. The district judge sentenced him as a career offender under USSG § 4B1.1 because he had at least two prior felony convictions for either a “crime of vi olence” or a “controlled substance offense.” He did not file a direct appeal. Since then, he has tried several times to overturn either his conviction or sentence. In August 2015, he filed his first 28 U.S. C. § 2255 motion in the Eastern District of Michigan, raising various claims of inef fective assistance of counsel. The district judge denied relief and the Sixt h Circuit denied a certificate of appealability (COA). The United States Supreme Court denied certiorari review. In June 2016, Sandlain requested and received permission from the Sixth Circuit to file a second or successi ve § 2255 motion in light of Johnson v. United States , --- U.S. ---, 135 S. Ct. 2551, 2557, 2563 (2015) (the resi dual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e ), is unconstitutionally vague). That motion was denied because, by that time, the Supr eme Court had refused to extend Johnson to strike the residual clause of the guidelines. See Beckles v. United States , --- U.S. ---, 137 S. Ct. 886, 892 (2017) (“[T]he Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.”). Because Sandlain had been se ntenced under the guid elines, not the ACCA, Johnson was of no help.- 3 - In June 2017, he filed the inst ant pro se 28 U.S.C. § 2241 petition 1 in the United States District Court for the District of Kansas, where he is currently in custody. 2 He again sought relief from the career offender guideline enhancement, this time claiming the sentencing judge erred in applying the m odified categorical approach to discover the means, as opposed to the elements, of his prior drug-trafficking conviction under Mich. Comp. Laws § 333.7401. Accord ing to him, this violated Mathis v. United States , --- U.S. ---, 136 S. Ct. 2243 (2016). The district judge dismisse d the § 2241 petition and deni ed Sandlain’s subsequent motion to reconsider. A lthough the judge cited case law requiring a petitioner challenging his conviction or sentence unde r § 2241 to demonstrate the remedy under § 2255 is inadequate or ineffective, he u ltimately dismissed the petition because both the Tenth Circuit 3 and district courts in th e Sixth Circuit had concluded Mathis did not apply retroactively to cases on collateral review. As a result, he also dec lined to transfer the case to the Eastern District of Michigan fo r Sandlain to pursue additional relief under

1 We have construed Sandl ain’s pro se pleadings lib erally, stopping short, however, from serving as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). 2 Section 2241 petitions are brought in the di strict where the prisoner is confined (in this case, the District of Kansas) whereas § 2255 motions are brought in the district where the defendant was convicted and sentence d (in this case, the Eastern District of Michigan). See Prost v. Anderson , 636 F.3d 578, 581 (10th Cir. 2011). 3 See United States v. Taylor , 672 F. App’x 860, 86 4-65 (10th Cir. 2016) (unpublished) ( Mathis does not apply retroactively to cases on collateral review). But see United States v. Burtons , --- F. App’x ---, No. 16-6091, 2017 WL 3531399, at *4 (10th Cir. Aug. 17, 2017) (unpublished) (declining to decide whether Mathis applies retroactively to cases on collateral review).- 4 - § 2255. Sandlain appeals from the dismissa l of his § 2241 petition, arguing Mathis is to be applied retroactively. 4 Whether Mathis is retroactive to cases on collateral review goes to the merits of his § 2241 petition. But we mu st first decide whether § 2241 was the proper vehicle to bring the Mathis claim. Since that issue impacts the court’s statutory jurisdiction, it is a threshold matter. Abernathy v. Wandes , 713 F.3d 538, 557 (10th Cir. 2013). Ordinarily, a § 2255 motion is the only me ans to attack the validity of a federal conviction or sentence. Hale v. Fox , 829 F.3d 1162, 11 65 (10th Cir. 2016); see also Prost v. Anderson , 636 F.3d 578, 581 (1 0th Cir. 2011). A § 2241 petition, on the other hand, is “generally reserved for complain ts about the nature of a prisoner’s confinement, not the fact of his confinement.” Prost , 636 F.3d at 581. However, “in rare instances, a prisoner may attack his underlying convic tion by bringing a § 2241 habeas corpus application under the saving s clause in § 2255(e).” Hale , 829 F.3d at 1165 (citation and quotation marks omitted). Under that clause , a federal prisoner ma y file a § 2241 petition attacking the validity of his conviction or se ntence only if § 2255 is “‘inadequate or ineffective to test the lega lity of his detention.’” Id. (quoting 28 U.S.C. § 2255(e)). In his § 2241 petition, Sandla in claimed § 2255 was inadeq uate or ineffective to challenge his sentence because Sixth Circuit law at the time he filed his initial § 2255

4 Sandlain seeks a certificate of appeal ability (COA), but a COA is not required. See McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 810 n. 1 (10th Cir. 1997).- 5 - motion precluded him from raisin g an ineffective assistance of counsel claim based on counsel’s failure to challenge the use of the modified categorical approach to determine the means, rather th an the elements, of his prior co nviction under Mich. Comp. Laws § 333.7401. We rejected a similar argument in Prost

. Prost pled guilty to conspiri ng to launder drug proceeds in violation of 18 U.S.C. § 1956. 636 F.3d at 580. He filed a § 2255 motion challenging his sentence, not his conviction. Id . He was denied relief. Id . Later, the Supreme Court decided United
States v. Santos , 553 U.S. 507 (2008). Id . In Santos , the Court “held that the term ‘proceeds’ in the federal mone y laundering statute, 18 U.S. C. § 1956, means ‘profits,’ and not just ‘gross receipts.’” Id . Prost brought a § 2241 pe tition seeking to have his money laundering convicti ons overturned based on Santos

. Id . at 580-81. Relying on the savings clause of § 2255(e), 5 he resorted to § 2241 beca use he could not satisfy the requirements of 28 U.S.C. § 2255(h) for bringi ng a second or successive § 2255 motion. Id . at 581. According to him, § 2255 was inad equate or ineffective to test the legality of his detention because, inter alia , the Eighth Circuit, where he was convicted, had previously and erroneously rejected Santos ’ reading of the federal money laundering

5 Section 2255(e) states: An application for a writ of habeas co rpus in behalf of a prisoner who is authorized to apply for relief by motion pu rsuant to this section, shall not be entertained if it appears that the applican t has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.- 6 - statute. Id . at 590. Bringing a Santos -type argument in his in itial § 2255 motion, he claimed, would therefor e have been futile. Id . We saw it differently. Prost, we said, “ was entirely free to raise and test a Santos -type argument in his initial § 2255 motion.” Id . That his argument may have been foreclosed by erroneous circuit precedent was not enough to invoke the savings clause of § 2255(e): “[T]he possibility of an erroneous re sult—the denial of relief that should have been granted— does not render the procedural mechanism Co ngress provided for bringing that claim (whether it be 28 U.S.C. §§ 1331, 1332, 2201 , 2255, or otherwise) an inadequate or ineffective remedial vehicle for testing its merits within the plain meaning of the savings clause.” Id . And, of course, nothing precluded Pr ost from seeking en banc review in the Eighth Circuit or certiorari re view with the Supreme Court: The U.S. Reports are . . . replete with instances where the Supreme Court has rewarded litigants who took the trouble to challenge adverse circuit precedent. While there is of course no guarantee that any en banc or certiorari petition will be granted, Mr. Prost can’t dispute that § 2255, as a procedural vehicle, was (and has proven to be) an adequate and effective means for testing the question he now seeks to pose. Id . at 590-91. The same is true in this case. Sa ndlain could have ra ised and tested a Mathis -type argument in his initial § 2255 motion. Indeed , contrary to his clai m, there was no Sixth Circuit precedent foreclosing the argument at that time. 6 However, even assuming there

6 Sandlain relies on United States v. Solomon , 592 F. App’x 359 (6th Cir. 2014) (unpublished). In Solomon , a Sixth Circuit panel decide d Mich. Comp. Laws § 333.7401 could be violated in a way th at does constitute a controlle d substance offense under the (Continued . . .)- 7 - was contrary circuit precedent, nothing prev ented him from raising the argument in his initial § 2255 motion and then challenging any contrary pr ecedent via en banc or certiorari review. Nor does it matter that Mathis was not in existence at the time he filed his initial § 2255 motion. Again, Prost is instructive: [W]e cannot agree that the absence of Santos from the U.S. Reports at the time of a prisoner’s first § 2255 motion has anything to do with the question whether § 2255 was an inadequate or ineffective remedial mechanism for challenging the legality of his detention. As we’ve explained, it is the infirmity of the § 2255 remedy itself, not the failure to use it or to prevail under it, that is determinative. To invoke the savings cl ause, there must be something about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention . . . . We readily acknowledge that, at the time of his first § 2255 motion, it is likely that neither Mr. Prost nor his counsel imagined the particular statutory interpretation argument Santos ultimately vindicated. But in much the same way that a student’s failure to imagine a nove l or creative answer to an exam question doesn’t make the exam an inadequate or ineffective procedure for testing his knowledge, the fact that Mr. Prost or his counsel may not have thought of a Santos -type argument earlier doesn’t speak to the relevant question whether § 2255 itself provided him with an adequate and effective remedial mechanism for testing such an argument. The § 2255 remedial vehicle was fully available and amply sufficient to test the argument, whethe r or not Mr. Prost thought to raise it. And that is all the savings clause requires.

career offender guideline and in a way that does not. Id . at 361. The court used the modified categorical approach to decide under which elements of the statute Solomon was convicted. Id . In doing so, it did not address a Mathis -type argument, i.e., whether § 333.7401 contains alternative means rather than elements and whether the modified categorical approach could be used to di scover the means of a prior conviction. Id . It was not until August 5, 2015, that the Sixt h Circuit decided the categorical approach applies regardless of whether a statute’s alternatives are elements or means. See United States v. Ozier , 796 F.3d 597, 602-03 (6th Cir. 2015), abrogated by Mathis , 136 S. Ct. at 2251 n.1. Sandl ain mailed his initial § 2255 mo tion on August 3, 2015.- 8 - Id . at 589. Sandlain cannot raise his Mathis argument in a second or successive § 2255 motion without permission from the Sixth Circ uit. 28 U.S.C. § 2255(h). And that permission will likely be denied because he has no newly discovered evidence and Mathis has not been made retroactive to ca ses on collateral review by the Supreme
Court. 7 Id . But merely being barred from raising a second or successive § 2255 motion does not satisfy the savings clause of § 2255(e). See Prost , 636 F.3d at 586 (“if the § 2255 remedial mechanism could be deemed inadequate or ineffective any time a petitioner is barred from raising a meritorious second or successive challenge to his conviction—subsection (h) would become a nullity, a meaningless gesture”) (quotation marks omitted); see also Hale , 829 F.3d at 1174 (“Because Mr. Hale cannot satisfy § 2255(h), he cannot, under Prost , satisfy § 2255(e), and § 2241 review must be denied.”). Finally, Sandlain claims § 2255 is inadequate or ineffective because he is actually innocent of the career offe nder enhancement under Mathis . But that merely restates the argument he could have brought in his initia l § 2255 motion. Moreover, he can only establish actual innocence “by bringing forward new exculpatory evidence.” Hale , 829

7 Section 2255(h)(2) explicitly requires that the new rule of constitutional law be “made retroactive to cases on collateral review by the Supreme Court .” (Emphasis added). Thus, for purposes of § 2255(h)(2), it is immaterial what we have said on the retroactivity issue. See supra note 3; see also In re Gieswein , 802 F.3d 1143, 1146 (10th Cir. 2015) (“Under § 2255(h)(2), the Supreme Co urt is the only entity that can make a new rule retroactive.”) (quotation marks omitted).- 9 - F.3d at 1171. He has not done so. Possibl e misuse of a prior conviction as a predicate offense under the sentencing guidelines does not demons trate actual innocence. In sum, this case does not involve one of those “rare instances” in which the savings clause of § 2255(e) applies. Id . at 1165 (quotation marks omitted). The district court lacked statutory juri sdiction to consider it. Abernathy , 713 F.3d at 557. Rather than dismissing th e § 2241 petition for lack of statutory jurisdiction, the judge dismissed it after a ddressing its merits ( Mathis does not apply retroactively). 8 Dismissal was the proper remedy, but it should have been without prejudice. See Cohen v. Longshore , 621 F.3d 1311, 1314 (10th Cir. 2010) (when, as here, the district court does not state whether a dismissal was with or without prejudice, we deem it to be with prejudice). We therefore AFFIRM the dismissal, but REMAND to the district court to clarify that the dismissal is for want of st atutory jurisdiction (i.e., without prejudice). See Abernathy , 713 F.3d at 558 (dismissal for lack of statutory jurisdiction is a dismissal without prejudice). We DENY Sandlain’s motion for appointment of an attorney. The district judge denied Sandlain’s request to proc eed without prepayment of fees ( in forma pauperis or ifp ) in this appeal because the no tice of appeal did not suggest a reasoned, nonfrivolous argument on the law and facts. Sandlain renews his ifp request

8 Reaching the merits of the § 2241 petition may not have been wrong. See Abernathy , 713 F.3d at 557 n.17 (recognizing, but not deciding, that it may be possible to exercise “hypothetical statutory jurisdiction” but not hypothetical Ar ticle III jurisdiction); see also Hill v. Oliver , --- F. App’x ---, No. 16-1165, 20 17 WL 2445850, at *3 (10th Cir. June 6, 2017) (unpublished) (same). But, as in Abernathy , by “resolv[ing] this appeal on jurisdictional grounds, we have no ne ed to definitively opine on whether the hypothetical-jurisdiction approach . . . woul d be . . . viable.” 713 F.3d at 557 n.17.- 10 - here. Because we have addressed a dispositiv e issue (the district court did not have statutory jurisdiction), his request to proceed ifp on appeal is DENIED AS MOOT

. Nevertheless, the relevant statute does not pe rmit litigants to avoid payment of fees; only prepayment of those fees. See 28 U.S.C. § 1915(a) (allowing courts to authorize the commencement of a civil or crim inal suit or appeal “without prepayment of fees or security thereof”) (emphasis added). All f iling and docketing fees ($505.00) are due and payable to the Clerk of the District Court.

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge