                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                   TENTH CIRCUIT                                October 5, 2017

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
BLAKE SANDLAIN,

              Petitioner - Appellant,
                                                              No. 17-3152
v.                                                   (D.C. No. 5: 17-CV-03103-JWL)
                                                                (D. Kan.)
NICOLE ENGLISH,

              Respondent – Appellee.




                              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       This order and judgment is an unpublished decision, not binding precedent. 10th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 Citation to unpublished decisions is not encouraged, but not prohibited.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 Unpublished decisions may also be cited for their persuasive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by an appropriate parenthetical notation B (unpublished).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.
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.




                                                -2-
       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).

                                                -3-
§ 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).

                                                 -4-
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.

                                                -5-
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 . . .)
                                               -6-
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.

                                                -7-
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).

                                               -8-
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.

                                                 -9-
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




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