United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
Jane Magnus-Stinson, Chief Judge
Dale Martin seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2241(c)(3). His petition for writ of habeas
corpus is denied.
records show that in 1992, following a jury trial, Martin was
convicted of: (1) conspiring to manufacture methamphetamine,
in violation of 21 U.S.C. § 846; (2) possessing a
firearm after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1); and (3) using or carrying a
firearm during a drug trafficking crime, in violation of 18
U.S.C. § 924(c). He received a mandatory sentence of
life imprisonment under 21 U.S.C. § 851 because of prior
qualifying drug offenses. His convictions and life sentence
were affirmed in United States v. Martin, No.
92-5080 (5th Cir. June 25, 1993). PACER records also show
that Martin has filed two 28 U.S.C. § 2255 motions.
These were docketed as No. 1:01-cv-308 and No. 1:06-cv-29.
Each was denied.
contends that the decisions in Mathis v. United
States, 136 S.Ct. 2243 (2016), and United States v.
Hinkle, 2016 WL 4254372 (5th Cir. 2016), render his
prior Texas state convictions for delivery of a controlled
substance “not viable as predicate convictions”
for the purpose of the sentence enhancement he received.
first motion for relief pursuant to 28 U.S.C. § 2255 was
denied on November 6, 2002. He has submitted a motion for
leave to file a second or successive § 2255 motion in
the Fifth Circuit asserting precisely the claim which is
asserted in his habeas petition. His 28 U.S.C. § 2255(f)
motion was docketed on June 30, 2017 as No. 17-40698. That
matter remains pending at present.
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974); United States v. Bezy, 499
F.3d 668, 670 (7th Cir. 2007). Martin, however, challenges
his sentence and seeks habeas corpus relief pursuant to 28
U.S.C. § 2241(c)(3). “A federal prisoner may use a
§ 2241 petition for a writ of habeas corpus to attack
his conviction or sentence only if § 2255 is
‘inadequate or ineffective.'” Hill v.
Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (quoting 28
U.S.C. § 2255(e)). Whether § 2255 is inadequate or
ineffective depends on “whether it allows the
petitioner ‘a reasonable opportunity to obtain a
reliable judicial determination of the fundamental legality
of his conviction and sentence.'” Webster v.
Daniels, 784 F.3d 1123, 1136 (7th Cir. 2015) (en
banc)(quoting In re Davenport, 147 F.3d 605, 609
(7th Cir. 1998). To properly invoke the Savings Clause of 28
U.S.C. § 2255(e), a petitioner is required to show
“something more than a lack of success with a section
2255 motion, ” i.e., “some kind of
structural problem with section 2255.” Id. The
Court of Appeals for the Seventh Circuit has identified the
three requirements to invoke the Savings Clause:
In the wake of Davenport, we distilled that holding
into a three-part test: a petitioner who seeks to invoke the
savings clause of § 2255(e) in order to proceed under
§ 2241 must establish: (1) that he relies on “not
a constitutional case, but a statutory-interpretation case,
so [that he] could not have invoked it by means of a second
or successive section 2255 motion, ” (2) that the new
rule applies retroactively to cases on collateral review and
could not have been invoked in his earlier proceeding, and
(3) that the error is “grave enough . . . to be deemed
a miscarriage of justice corrigible therefore in a habeas
corpus proceeding, ” such as one resulting in “a
conviction for a crime of which he was innocent.”
Brown v. Rios, 696 F.3d 638, 640 (7th Cir. 2012);
see also Davenport, 147 F.3d at 611 (referencing the
procedure as one to correct “a fundamental
defect” in the conviction or sentence).
Montana v. Cross, 829 F.3d 775, 783 (7th Cir. 2016),
cert. denied sub nom. Montana v. Werlich, 137 S.Ct.
1813 (2017). “The petitioner bears the burden of coming
forward with evidence affirmatively showing the inadequacy or
ineffectiveness of the § 2255 remedy.” Smith
v. Warden, FCC Coleman-Low, 503 F.App'x
763, 765 (11th Cir. 2013) (citation omitted).
even if Martin could satisfy the requirements for the Savings
Clause, he would not be entitled to relief. Hinkle
is not applicable because it relates to enhancements under
the Sentencing Guidelines, and nothing Martin offers or
argues suggests that he does not have two prior convictions
for a “felony drug offense.” A “felony drug
offense” is defined as “an offense that is
punishable by imprisonment for more than one year under any
law of the United States or of a State or foreign country
that prohibits or restricts conduct relating to narcotic
drugs, marijuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44).
Martin's convictions for possession of methamphetamine,
possession of methamphetamine with intent to manufacture, and
possession of methamphetamine with intent to deliver all
facially qualify under § 802(44)' s broad language.
This is all that is required to trigger the mandatory life
sentence which was imposed in his case. See 21
U.S.C. § 841(b)(1)(A). “Johnson is not
pertinent to such cases.” United States v.
Guerrero, 2017 WL 3098256, *2 (D.N.M. June 23,
on the foregoing, Martin has sought relief pursuant to 28
U.S.C. § 2241 under circumstances which do not permit or
justify the use of that remedy. ...