UNITED STATES COURT 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 possession of a firearm. That occurred in the 

 

*

 Oral argument would not materially assist 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This order and judgment is an unpublished decision, not binding precedent. 10th 

Cir. R. 32.1(A). Citation to unpublished decisions is not encouraged, but not prohibited.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 Unpublished decisions may also be cited for their persuasive 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by an appropriate parenthetical notation B (unpublished).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
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United States District Court for the Eastern District of Michigan. 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 violence” 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 ineffective assistance of counsel. The district 

judge denied relief and the Sixth 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 successive § 2255 motion in light of Johnson v. United States, --- U.S. 

---, 135 S. Ct. 2551, 2557, 2563 (2015) (the residual 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 Supreme 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 sentenced under the guidelines, not the ACCA, 

Johnson was of no help. 
- 3 - 

In June 2017, he filed the instant pro se 28 U.S.C. § 2241 petition1

 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 modified categorical approach to discover the 

means, as opposed to the elements, of his prior drug-trafficking conviction under Mich. 

Comp. Laws § 333.7401. According to him, this violated Mathis v. United States, --- 

U.S. ---, 136 S. Ct. 2243 (2016). 

The district judge dismissed the § 2241 petition and denied Sandlain’s subsequent 

motion to reconsider. Although the judge cited case law requiring a petitioner 

challenging his conviction or sentence under § 2241 to demonstrate the remedy under 

§ 2255 is inadequate or ineffective, he ultimately dismissed the petition because both the 

Tenth Circuit3

 and district courts in the Sixth Circuit had concluded Mathis did not apply 

retroactively to cases on collateral review. As a result, he also declined to transfer the 

case to the Eastern District of Michigan for Sandlain to pursue additional relief under 

 

1

 We have construed Sandlain’s pro se pleadings liberally, 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 district 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 sentenced (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, 864-65 (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 dismissal 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 must 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 means to attack the validity of a federal 

conviction or sentence. Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016); see also 

Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011). A § 2241 petition, on the other 

hand, is “generally reserved for complaints 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 conviction by bringing a § 2241 habeas corpus 

application under the savings clause in § 2255(e).” Hale, 829 F.3d at 1165 (citation and 

quotation marks omitted). Under that clause, a federal prisoner may file a § 2241 petition 

attacking the validity of his conviction or sentence only if § 2255 is “‘inadequate or 

ineffective to test the legality of his detention.’” Id. (quoting 28 U.S.C. § 2255(e)). 

In his § 2241 petition, Sandlain claimed § 2255 was inadequate or ineffective to 

challenge his sentence because Sixth Circuit law at the time he filed his initial § 2255 

 

4

 Sandlain seeks a certificate of appealability (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 raising 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 than the elements, of his prior conviction under Mich. Comp. Laws 

§ 333.7401. We rejected a similar argument in Prost. 

Prost pled guilty to conspiring 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 money laundering statute, 18 U.S.C. § 1956, means ‘profits,’ 

and not just ‘gross receipts.’” Id. Prost brought a § 2241 petition seeking to have his 

money laundering convictions overturned based on Santos. Id. at 580-81. Relying on the 

savings clause of § 2255(e),5

 he resorted to § 2241 because he could not satisfy the 

requirements of 28 U.S.C. § 2255(h) for bringing a second or successive § 2255 motion. 

Id. at 581. According to him, § 2255 was inadequate 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 corpus in behalf of a prisoner who is 

authorized to apply for relief by motion pursuant to this section, shall not be 

entertained if it appears that the applicant 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. 
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statute. Id. at 590. Bringing a Santos-type argument in his initial § 2255 motion, he 

claimed, would therefore 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 result—the denial of relief that should have been granted—

does not render the procedural mechanism Congress 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 Prost from seeking en banc review in the 

Eighth Circuit or certiorari review 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. Sandlain could have raised and tested a Mathis-type 

argument in his initial § 2255 motion. Indeed, contrary to his claim, 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 decided Mich. Comp. Laws § 333.7401 

could be violated in a way that does constitute a controlled substance offense under the 

 (Continued . . .) 
- 7 - 

was contrary circuit precedent, nothing prevented him from raising the argument in his 

initial § 2255 motion and then challenging any contrary precedent 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 clause, 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 novel 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, whether 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 discover the means of a prior conviction. Id. It 

was not until August 5, 2015, that the Sixth 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. Sandlain mailed his initial § 2255 motion on August 3, 2015. 
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Id. at 589. 

Sandlain cannot raise his Mathis argument in a second or successive § 2255 

motion without permission from the Sixth Circuit. 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 cases 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 offender enhancement under Mathis. But that merely restates the 

argument he could have brought in his initial § 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 Court is the only entity that can make a 

new rule retroactive.”) (quotation marks omitted). 
- 9 - 

F.3d at 1171. He has not done so. Possible misuse of a prior conviction as a predicate 

offense under the sentencing guidelines does not demonstrate 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 jurisdiction to consider it. Abernathy, 713 F.3d at 557. 

Rather than dismissing the § 2241 petition for lack of statutory jurisdiction, the 

judge dismissed it after addressing 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 statutory 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 proceed without prepayment of 

fees (in forma pauperis or ifp) in this appeal because the notice 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 Article III jurisdiction); 

see also Hill v. Oliver, --- F. App’x ---, No. 16-1165, 2017 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 need to definitively opine on whether the 

hypothetical-jurisdiction approach . . . would be . . . viable.” 713 F.3d at 557 n.17. 
- 10 - 

here. Because we have addressed a dispositive 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 permit 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 criminal suit or appeal “without prepayment of fees or 

security thereof”) (emphasis added). All filing 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