Cantillo v. Unknown Party

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Lazaro Cantillo, No. CV-23-0093-TUC-RCC (EJM) 10 Petitioner, 11 v. REPORT AND RECOMMENDATION 12 Warden, 13 Respondent. 14 Currently pending before the Court is Petitioner Lazaro Cantillo’s Petition for a 15 Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”) (Doc. 1). Respondent has 16 filed a Return and Answer (“Answer”) (Doc. 14), and Petitioner did not reply. The 17 Petition is ripe for adjudication. 18 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter 19 was referred to Magistrate Judge Markovich for Report and Recommendation. Upon 20 review of the pleadings and exhibits, the Magistrate Judge recommends that the District 21 Judge dismiss the Petition (Doc. 1) for lack of jurisdiction. — 22 — 23 I. BACKGROUND 24 At the time Petitioner filed his Petition (Doc. 1), Petitioner was an inmate 25 incarcerated at the Federal Correctional Institution in Tucson, Arizona (“FCI–Tucson”). 26 See Petition (Doc. 1). Currently, Petitioner remains incarcerated at FCI–Tucson. See 27 Fed. Bureau of Prisons (“BOP”) Inmate Locater, https://www.bop.gov/inmateloc/ (last — 28 — 1 Rules of Practice of the United States District Court for the District of Arizona. 1 visited April 22, 2024). Petitioner’s projected release date is August 25, 2031. See id. 2 A. Federal Conviction, Sentencing, and Appeal 3 On April 19, 2001, a federal grand jury in the Southern District of Florida indicted 4 Petitioner on one (1) count of conspiracy to possess with intent to distribute a Schedule II 5 controlled substance, five (5) or more kilograms of cocaine, in violation of the United 6 States Code, Title 21, Sections 841(a)(1), 841(b)(1)(A)(ii), and 846; one (1) count of 7 possession with intent to distribute a Schedule II controlled substance, five (5) or more 8 kilograms of cocaine, in violation of the United States Code, Title 21, Sections 841(a)(1), 9 841(b)(1)(A)(ii), and 846; and one (1) count of conspiracy to use and carry firearms 10 during and in relation to a drug trafficking crime in violation of the United States Code, 11 Title 18, Sections 924(c) and 924(o). Indictment, United States v. Cantillo, No. 01-CR12 0377-JIC (S.D. Fla. Apr. 19, 2001), ECF No. 27.2 On May 31, 2001, the federal grand 13 jury returned a superseding indictment which added one (1) count of using and carrying 14 firearms during and in relation to a drug trafficking crime in violation of Title 18, United 15 States Code, Sections 924(c)(1)–(2), and one (1) count of being a felon in possession in 16 violation of Title 18, United States Code, Section 922 (g)(1). Superseding Indictment, 17 United States v. Cantillo, No. 01-CR-0377-JIC (S.D. Fla. May 31, 2001), ECF No. 37. 18 On February 15, 2002, following a jury trial, Petitioner was found guilty of all five (5) 19 counts. See Verdict, United States v. Cantillo, No. 01-CR-0377-JIC (S.D. Fla. Feb. 15, 20 2002), ECF No. 92. On August 30, 2002, Petitioner was sentenced to 420 months 21 imprisonment, followed by a sixty (60) month term of supervised release. See Judgment, 22 United States v. Cantillo, No. 01-CR-0377-JIC (S.D. Fla. Aug. 30, 2002), ECF No. 166. 23 The district court classified Petitioner as a career offender based inter alia on a prior 24 burglary conviction. See United States v. Gunn, et al., 369 F.3d 1229 , 1238 n.6 (11th Cir. — 25 — 2 “The court may judicially notice a fact that is not subject to reasonable dispute because — 26 — it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 27 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). United States District Court for the Southern District of Florida orders and 28 proceedings are proper material for judicial notice. See Dawson v. Mahoney, 451 F.3d 550 , 551 n.1 (9th Cir. 2006) (taking judicial notice of orders and proceedings before another tribunal). 1 2004). 2 On September 9, 2002, Petitioner filed a notice of appeal. Not. of Appeal, United 3 States v. Cantillo, No. 01-CR-0377-JIC (S.D. Fla. Sept. 9, 2002), ECF No. 168. On May 4 12, 2004, the Eleventh Circuit Court of Appeals issued its order affirming Petitioner’s 5 convictions and sentences. See Gunn, 369 F.3d at 1234–38. On October 12, 2004, the 6 Supreme Court of the United States denied certiorari. See Cantillo v. United States, 543 7 U.S. 937 (2004). 8 B. Collateral Challenges 9 1. Section 2255—First Petition 10 On October 7, 2005, Petitioner filed his Section 2255 petition. Mot. Under 28 11 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Fed. Custody, 12 United States v. Cantillo, No. 01-CR-0377-JIC (S.D. Fla. Oct. 7, 2005), ECF No. 194; 13 see also Complaint, Cantillo v. United States, No. 05-CV-22682-JIC (S.D. Fla. Oct. 7, 14 2005), ECF No. 1.3 Petitioner alleged three (3) grounds for relief: 1) ineffective 15 assistance of counsel based upon trial counsel’s alleged failures to a) “timely investigate 16 evidence of excessive force used during [Petitioner’s] arrest and evidence of illegal 17 recording techniques during and post arrest”; b) “timely investigate Petitioner’s inherent 18 criminal history and to inform him of its possible collateral consequences”; c) “prepare 19 an adequate entrapment defense[] [or] request a special verdict instruction” for a 20 determination of the amount of drugs attributable for each defendant or find Petitioner 21 guilty of a lesser included charge; and d) “properly object to the use of a burglary of an 22 unoccupied dwelling as a crime of violence for career offender enhancement under the 23 sentencing guidelines”; 2) ineffective assistance of appellate counsel based upon an 24 alleged failure to argue that the career offender enhancement was improperly applied to — 25 — 3 The prison mailbox rule directs that a pro se prisoner’s federal habeas petition is — 26 — deemed filed when “he hands it over to prison authorities” for mailing. See Houston v. Lack, 487 27 U.S. 266 , 275–76 (1988). For Petitioner’s pro se post-conviction filings and calculating timeliness, the Court relies on the date on which Petitioner handed his documents over to prison 28 authorities. The citation sentence, however, reflects the date on which the filing was docketed by the court. 1 Petitioner; and 3) violation of the Sixth Amendment right to jury notice at sentencing. Id. 2 at 4–5.4 On June 23, 2006, the magistrate judge issued his Report and Recommendation 3 considering the merits of the petition. Report & Recommendation, Cantillo v. United 4 States, No. 05-22682-CIV-COHN/WHITE (S.D. Fla. June 23, 2006), ECF No. 14. The 5 magistrate judge observed that “[t]he Eleventh Circuit . . . has held that burglary of a 6 dwelling is a crime of violence for purposes of enhancement under the career offender 7 provisions of the Guidelines.” Id. at 15–16 (reviewing cases recognizing burglary of a 8 dwelling, whether occupied or unoccupied, qualified as a crime of violence for career 9 offender status). On January 8, 2007, the court adopted the magistrate judge’s report and 10 recommendation and denied Petitioner’s Section 2255 petition. Order, Cantillo v. United 11 States, No. 05-22682-CIV-COHN/WHITE (S.D. Fla. Jan. 8, 2007), ECF. No. 25. 12 On February 14, 2007, Petitioner filed his Notice of Appeal regarding the denial of 13 his Section 2255 petition. Not. of Appeal, Cantillo v. United States, No. 05-22682-CIV14 COHN/WHITE (S.D. Fla. Feb. 14, 2007), ECF. No. 26. On the March 26, 2007, the 15 district judge declined to issue a certificate of appealability finding that Petitioner “ha[d] 16 not shown that ‘jurists of reason would find it debatable whether the petition states a 17 valid claim of denial of a constitutional right and that jurists of reason would find it 18 debatable whether the district court was correct in its procedural ruling.’” Order, Cantillo 19 v. United States, No. 05-22682-CIV-COHN (S.D. Fla. Mar. 26, 2007) (quoting Slack v. 20 McDaniel, 529 U.S. 473, 484 (2000)), ECF. No. 30. On October 3, 2007, the Eleventh 21 Circuit Court of Appeals granted issuance of a Certificate of Appealability on the single 22 issue of “[w]hether the district court erred in finding that the appellant had not been 23 deprived of effective assistance of trial and appellate counsel when trial counsel failed to 24 argue at sentencing that a prior conviction for burglary of an unoccupied dwelling did not 25 constitution a ‘crime of violence’ to support a finding that the appellant was a career 26 offender and appellate counsel failed to raise the issue on appeal.” Order, Cantillo v. — 27 — 28 4 Unless otherwise noted, page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page number for ease of reference. 1 United States, No. 07-10830-D (11th Cir. Oct. 3, 2007), available at Cantillo v. United 2 States, No. 05-22682-CIV-COHN (S.D. Fla. Nov. 1, 2007), ECF No. 37. On August 28, 3 2008, the Eleventh Circuit Court of Appeals issued its decision affirming Petitioner’s 4 sentence. Opinion, Cantillo v. United States, No. 07-10830-D (11th Cir. Aug. 28, 2008), 5 available at Cantillo v. United States, No. 05-22682-CIV-COHN (S.D. Fla. Oct. 27, 6 2008), ECF No. 42. On October 27, 2008, the appellate court issued its mandate. 7 Mandate, Cantillo v. United States, No. 07-10830-D (11th Cir. Oct. 27, 2008), available 8 at Cantillo v. United States, No. 05-22682-CIV-COHN (S.D. Fla. Oct. 27, 2008), ECF 9 No. 42. 10 2. Section 2255—Second Petition 11 On October 18, 2010, Petitioner filed an Application for Leave to File a Second or 12 Successive Motion to Vacate, Set Aside or Correct Sentence 28 U.S.C. § 2255 by a 13 Prisoner in Federal Custody. In re: Cantillo, No. 10-14788-D (11th Cir. Oct. 18, 2010), 14 ECF No. 2. Petitioner asserted that the district court improperly relied on an offense 15 committed prior to his 18th birthday when classifying Petitioner as a career offender. Id. 16 at 5–7, 11–12. Petitioner asserted that this was “newly discovered evidence.” See id. at 17 5, 10–12. 18 On November 12, 2010, the Eleventh Circuit Court of Appeals observed that “the 19 details of Cantillo’s prior convictions that were used to determine his career-offender 20 status were available to him at the time of his first § 2255 motion, [and therefore,] this 21 evidence is not ‘newly discovered’ within the meaning of § 2255(h)(1).” Order at 2, In 22 re: Cantillo, No. 10-14788-D (11th Cir. Nov. 12, 2010). The court further found that 23 “because Cantillo ha[d] failed to make a prima facie showing of the existence of either of 24 the grounds set forth in 28 U.S.C. § 2255 , his application for leave to file a second or 25 successive motion [wa]s . . . DENIED.” Id. (emphasis in original). 26 3. Section 2255—Third Petition 27 On June 24, 2016, Petitioner filed a third Section 2255 petition. Complaint, 28 Cantillo v. United States, No. 1:16-CV-22562-JIC (S.D. Fla. June 24, 2016), ECF No. 1. 1 Petitioner asserted that “[a]t a time when the Guidelines were mandatory and had the 2 force and effect of laws, this Court sentenced Mr. Cantillo as a career offender based on 3 the residual clause of U.S.S.G. § 4B1.2(a)(2)[,] [but] [u]nder the Supreme Court’s recent 4 decision in Johnson v. United States, 135 S. Ct. 2551 (2015), Mr. Cantillo no longer 5 qualifies as a career offender, and his career-offender sentence violates due process of 6 law and results in a fundamental defect inherently resulting in a miscarriage of justice.” 7 Complaint at 1, Cantillo v. United States, No. 1:16-CV-22562-JIC (S.D. Fla. June 24, 8 2016), ECF No. 1. Petitioner argued that he “no longer qualifies as a career offender 9 because Johnson invalidated the residual clause, and, without the residual clause, he does 10 not have two prior convictions that continue to qualify as predicate offenses under 11 U.S.S.G. § 4B1.2(a).” Id. at 4. Petitioner sought resentencing without the career 12 offender enhancement. Id. at 25. 13 On June 28, 2016, the Eleventh Circuit Court of Appeals denied Petitioner’s 14 Application for leave to File a Second or Successive Motion to Vacate, Set Aside, or 15 Correct Sentence, 28 U.S.C. § 2255 . Order, In re: Lazaro Cantillo, No. 16-13098-J (11th 16 Cir. June 28, 2016), ECF No. 4. The court observed that it had previously “held that 17 Johnson doesn’t apply to USSG § 4B1.1 for the purpose of permission to file a second or 18 successive § 2255 petition.” Id. at 1 (citations omitted). Accordingly, the district court 19 dismissed Petitioner’s petition for lack of jurisdiction and denied issuance of a certificate 20 of appealability. Amended Order, Cantillo v. United States, No. 16-22562-CIV21 COHN/SELTZER, (S.D. Fla. Aug. 2, 2016), ECF No. 14. 22 4. Section 2241—First Petition 23 On January 29, 2018, Petitioner filed a petition for habeas corpus pursuant to 24 Section 2241 in the Northern District of Florida. § 2241 Habeas Corpus Petition, 25 Cantillo v. Warden, No. 5:18-CV-00029-MCR/CAS (N.D. Fla. Jan. 29, 2018), ECF No. 26 1. Relying on the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 27 (2016), Petitioner sought relief “from his erroneous mandatory career offender penalty.” 28 Id. at 10. Petitioner observed that “[i]n light of Mathis, this Circuit has since held that 1 ‘Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a 2 dwelling offense non-generic’ under the Guidelines.” Id. at 11 (quoting United States v. 3 Garcia-Martinez, 845 F.3d 1126, 1134 (11th Cir. 2017)). Petitioner further asserted that 4 “[t]he law ‘[could not] impose” on Mr. Cantillo the career offender penalty without the 5 Florida burglary conviction.” Id. at 12 (first alteration added, remaining in original) 6 (emphasis in original). Petitioner urged “[t]hat is what makes Mr. Cantillo’s problem 7 important enough to be fixed under this remedy pursuant to § 2255(e).” Id. 8 On July 13, 2018, the magistrate judge issued his Report and Recommendation 9 concluding that “Petitioner ha[d] not demonstrated entitlement to proceed under section 10 2241[,]” and recommending that the petition be dismissed for lack of jurisdiction. See 11 Report and Recommendation, Cantillo v. Warden, No. 5:18-CV-00029-MCR/CAS (N.D. 12 Fla. July 13, 2018), ECF No. 12. The magistrate judge observed that “[c]ontrary to 13 Cantillo’s assertions, ‘[t]he applicability of the saving[] clause is a threshold 14 jurisdictional issue, and the saving[] clause imposes a subject-matter jurisdiction limit on 15 § 2241 petitions.’” Id. at 10 (first alteration added, remainder in original) (quoting Samak 16 v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1273 (11th Cir. 2014)). The 17 magistrate judge further observed that “Mathis involved a direct appeal and the U.S. 18 Supreme Court gave no indication that decision applied retroactively to cases on 19 collateral review.” Id. at 12 (citing Mathis, 136 S. Ct. at 2257 ). The magistrate judge 20 further clarified that “[t]he Eleventh Circuit has explained that ‘Mathis does not provide 21 an independent basis [for an application to authorize the filing of a second or successive § 22 2255 motion] as the Supreme Court’s holding in Mathis did not announce a ‘new rule of 23 constitutional law.’” Id. at 13–14 (first alteration added, subsequent alterations in 24 original) (quoting In re: Hernandez, 657 F.3d 1162 , 1164 (11th Cir. 2017)). 25 On September 4, 2018, the court adopted the report and recommendation, 26 dismissed Petitioner’s section 2241 petition, and denied a certificate of appealability. 27 Order, Cantillo v. Warden, No. 5:18-CV-00029-MCR/CAS (N.D. Fla. Sept. 4, 2018), 28 ECF No. 19. 1 On November 26, 2018, Petitioner filed his Notice of Appeal. Notice, Cantillo v. 2 Warden, No. 5:18-CV-00029-MCR/CAS (N.D. Fla. Nov. 26, 2018), ECF No. 24. On 3 March 11, 2019, the Eleventh Circuit Clerk of the Court dismissed Petitioner’s appeal for 4 failure to prosecute due to a failure to pay the filing and docketing fees. Not. of 5 Dismissal, Cantillo v. FCI Marianna Warden, No. 18-14916-D (11th Cir. Mar. 11, 2019), 6 ECF No. 10. 7 5. Section 2241—Second Petition 8 On May 7, 2019, Petitioner filed another petition for habeas corpus pursuant to 9 Section 2241 in the Southern District of Mississippi. Petition for a Writ of Habeas 10 Corpus Under 28 U.S.C. § 2241 , Cantillo v. Warden, No. 3:19-CV-00322-CWR-FKB 11 (S.D. Miss. May 17, 2019), ECF No. 1. Petitioner reiterated his claim that the Supreme 12 Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016), “rendered Florida 13 burglary not a conviction under the career offender guidelines[.]” Petitioner’s Mem. in 14 Support for Writ of Habeas Corpus Under the “Savings Clause” at 3, Cantillo v. Warden, 15 No. 3:19-CV-00322-CWR-FKB (S.D. Miss. May 17, 2019), ECF No. 2 (emphasis in 16 original). Petitioner asserted “courts have expressly held that an erroneous mandatory 17 sentencing enhancement, such as Mr. Cantillo’s erroneous career offender penalty, is akin 18 to actual innocence and is a miscarriage of justice.” Id. at 4. Petitioner further asserted 19 that “[b]oth Mathis and Decamps v. United States, 133 S. Ct. 2276 (2013), apply 20 retroactively under the savings clause[.]” Id. at 5. Petitioner urged “[t]he erroneous 21 career offender penalty is analogous to ‘actual innocence’ and is a fundamental 22 miscarriage of justice that requires correction under this Circuit’s savings clause 23 remedy.” Id. at 6. 24 On June 16, 2022, the magistrate judge issued his Report and Recommendation 25 concluding that the court “[wa]s without jurisdiction to consider the petition[,] . . . [and] 26 recommend[ing] that the petition be dismissed with prejudice.” Report and 27 Recommendation, Cantillo v. Warden, No. 3:19-CV-00322-KHJ-FKB (S.D. Miss. June 28 16, 2022), ECF No. 17. The magistrate judge observed that Petitioner “raised a Mathis 1 claim in his § 2241 petition filed in 2018 before the Northern District of Florida[,] . . . 2 [was] denied relief[,] . . . [and] [d]issatisfied with that result he has come to [the Southern 3 District of Mississippi] seeking a more favorable decision.” Id. at 6. The magistrate 4 judge noted that “§ 2244(a) forecloses such forum shopping and repeated attempts to 5 obtain relief.” Id. The magistrate judge concluded that the court lacked jurisdiction 6 based on an abuse of the writ and further found that Descamps was inapplicable to 7 Petitioner’s case. Id. at 6–7. 8 On July 6, 2022, the court adopted the report and recommendation and dismissed 9 Petitioner’s section 2241 petition with prejudice. Order, Cantillo v. Warden, No. 3:1910 CV-00322-KHJ-FKB (S.D. Miss. July 6, 2022), ECF No. 18. Judgment was entered on 11 the same day. Final J., Cantillo v. Warden, No. 3:19-CV-00322-KHJ-FKB (S.D. Miss. 12 July 6, 2022), ECF No. 19. 13 C. The Instant Habeas 14 On February 24, 2023, Petitioner filed a Petition for a Writ of Habeas Corpus 15 Under 28 U.S.C. § 2241 . See Petition (Doc. 1). Petitioner asserts that “[t]he remedy by 16 motion under 28 U.S.C. § 2255 is inadequate and ineffective to allow resort to the 17 savings clause for relief because Mathis is a retroactive statutory interpretation case, 18 which has rendered Mr. Cantillo innocent of his mandatory career offender sentence.”5 19 Petr.’s Mem. in Support of Pet. for Relief Pursuant to 28 U.S.C. § 2255 (e), the “Savings 20 Clause” (Doc. 1-1) at 7 (emphasis in original). Relying on Allen v. Ives, 950 F.3d 1184 21 (9th Cir. 2020), Plaintiff asserts that because a “Florida burglary [conviction] does not 22 qualify as a crime of violence for the [Armed Career Criminal Act] or career offender 23 penalties after Mathis (and Johnson)[,] . . . the Supreme Court has retroactively nullified 24 these prior convictions and there are no other predicates to support Mr. Cantillo’s career — 25 — 5 In Mathis v. United States, 579 U.S. 500 (2016), the Supreme Court considered whether — 26 — the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924 (e), makes an exception the rule that 27 a “prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.” Mathis, 579 U.S. at 503 . The Court determined 28 that if the elements of a state criminal statute are broader than those of the generic crime, convictions under that state statute cannot give rise to an ACCA sentence. Id. at 520. 1 offender sentence.” Id. at 8–9. Petitioner further claims that “[t]hroughout his direct 2 appeal, first § 2255 motion, subsequent § 2255 motions, and savings clause petitions, Mr. 3 Cantillo has been procedurally foreclosed in his challenge to the Florida burglary 4 conviction underlying his mandatory career offender penalty, which no longer qualifies 5 as a valid predicate for his sentence.” Id. at 12. Petitioner argues that “he has not had an 6 unobstructed procedural shot at correcting his fundamental defect until now[,]” and seeks 7 “relief under the savings clause of § 2255[.]” Id. at 13. — 8 — 9 II. ANALYSIS 10 A. Legal Standards 11 “As a general rule, § 2255 provides the exclusive procedural mechanism by which 12 a federal prisoner may test the legality of detention.” Harrison v. Ollison, 519 F.3d 952 , 13 955 (9th Cir. 2008) (quotations and citations omitted). Section 2255 provides that: 14 A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the — 15 — sentence was imposed in violation of the Constitution or laws of the United 16 States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is — 17 — otherwise subject to collateral attack, may move the court which imposed 18 the sentence to vacate, set aside or correct the sentence. — 19 — 28 U.S.C. § 2255 (a). Usually, “motions to contest the legality of a sentence must be filed 20 under § 2255 in the sentencing court, while petitions that challenge the manner, location, 21 or conditions of a sentence’s execution must be brought pursuant to § 2241 in the 22 custodial court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citations 23 omitted); see 28 U.S.C. §§ 2241 (d), 2255(a). “Under the savings clause of § 2255, 24 however, a federal prisoner may file a habeas corpus petition pursuant to § 2241 to 25 contest the legality of a sentence where his remedy under § 2255 is ‘inadequate or 26 ineffective to test the legality of his detention.’” Hernandez, 204 F.3d at 864–65 (quoting — 27 — 28 U.S.C. § 2255 ; then citing Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999)). “We 28 refer to this section of § 2255 as the ‘savings clause[]’ or the ‘escape hatch.’” Harrison, — 1 — 519 F.3d at 956 (quotations and citations omitted). “If a prisoner’s claims qualify for the 2 escape hatch of § 2255, the prisoner may challenge the legality of a sentence through a § 3 2241 petition in the custodial court.” Id. (citations omitted). 4 B. Jurisdiction 5 “[I]n order to determine whether jurisdiction is proper, a court must first determine 6 whether a habeas petition is filed pursuant to § 2241 or § 2255 before proceeding to any 7 other issue.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). 8 Here, Petitioner is a federal prisoner contesting the legality of his sentence by 9 challenging his prior Florida state conviction for burglary, asserting that it does not 10 qualify as “a valid predicate for a crime of violence for federal sentencing.” Petr.’s Mem. 11 in Support of Pet. for Relief Pursuant to 28 U.S.C. § 2255 (e), the “Savings Clause” (Doc. 12 1-1) at 9. Petitioner claims that his “prior Florida burglary conviction cannot be used to 13 support his mandatory career offender sentence[,] . . . [and] [he] is actually innocence 14 [sic] of his career offender sentence.” Id. at 10 . Petitioner seeks “relief under the savings 15 clause of § 2255 and . . . from [his] unconstitutional and illegal sentence.” Id. at 13. 16 Properly, Petitioner’s request for relief should be asserted under Section 2255 in 17 the Southern District of Florida. Petitioner does not contend otherwise, but rather argues 18 that the § 2255 remedy is inadequate or ineffective because “during [his] direct appeal 19 and first § 2255 motion Eleventh Circuit case law firmly held . . . that the Florida 20 burglary statute was divisible, allowing the sentencing court to look at state court papers 21 to determine whether [Petitioner] had entered a structure or the curtilage.” Id. at 10–11. 22 Petitioner further noted that “the Eleventh Circuit . . . (unlike this circuit) has refused to 23 acknowledge any difference between the mandatory and advisory career offender 24 guidelines[,]” preventing him from challenging his sentence under Johnson.6 Id. at 11 — 25 — 6 Johnson v. United States, 576 U.S. 591 (2015). In Johnson, the Supreme Court of the — 26 — United States held that “imposing an increased sentence under the residual clause of the Armed 27 Career Criminal Act violates the Constitution’s guarantee of due process.” Id. at 606. Petitioner finds this case important because it overturned James v. United States, 550 U.S. 192 (2007); 28 however, he was not sentenced under the ACCA and fails to present any logical reason why this analysis is relevant to him. 1 (citations omitted). As discussed below, this Court lacks jurisdiction over Petitioner’s 2 section 2241 petition. 3 1. Abuse of the Writ 4 The Ninth Circuit Court of Appeals has recognized that “[t]he doctrine of abuse of 5 the writ generally ‘forbids the reconsideration of claims that were or could have been 6 raised in a prior habeas petition.’” Alaimalo v. United States, 645 F.3d 1042, 1049 (9th 7 Cir. 2011) (quoting Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530 , 538 (9th 8 Cir. 1998) (en banc), overruled in part on other grounds by Woodford v. Garceau, 538 9 U.W. 202 (2003)). The court of appeals further observed that “[u]nder the abuse of the 10 writ doctrine, a successive petition that raises identical grounds for relief as a prior 11 petition must be dismissed unless the petition can show (1) cause for bringing a 12 successive petition and that prejudice would result or (2) that a fundamental miscarriage 13 of justice would result from failure to entertain the claim.” Id. (citations omitted). 14 Petitioner’s most recent section 2241 petition was dismissed as an abuse of the writ. See 15 Report & Recommendation, Cantillo v. Warden, No. 3:19-CV-00322-KHJ-FKB (S.D. 16 Miss. June 16, 2022), ECF No. 17, adopted by Order, Cantillo v. Warden, No. 3:19-CV17 00322-KHJ-FKB (S.D. Miss. July 6, 2022), ECF No. 18. The government bears the 18 burden of pleading abuse of the writ, but did not do so here. See id. As such, although 19 Petitioner’s grounds for relief are identical to those he has presented in previous petitions, 20 this Court will not consider the propriety of dismissal for abuse of the writ. 21 2. Jones v. Hendrix 22 In Jones, the Supreme Court observed: 23 [S]ince the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), second or successive § 2255 motions are barred unless they rely — 24 — on either “newly discovered evidence,” § 2255(h)(1), or “a new rule of 25 constitutional law,” § 2255(h)(2). A federal prisoner may not, therefore, file a second or successive § 2255 motion based solely on a more favorable — 26 — interpretation of statutory law adopted after his conviction became final and 27 his initial § 2255 motion was resolved. 28 Jones v. Hendrix, 599 U.S. 465 , 469–70 (2023). The Court went on to address the 1 question of whether “that limitation on second or successive motions makes § 2255 2 ‘inadequate or ineffective’ such that the prisoner may proceed with his statutory claim 3 under § 2241.” Jones v. Hendrix, 599 U.S. 465, 470 (2023). The Court observed that 4 prior to Jones, 5 [s]everal Courts of Appeals found a workaround for [] prisoners in the saving clause . . . [holding] that § 2255 was ‘inadequate and ineffective’ — 6 — under the saving clause—and that § 2241 was therefore available—when 7 AEDPA’s second-or-successive restrictions barred a prisoner from seeking relief based on a newly adopted narrowing interpretation of a criminal — 8 — statute that circuit precedent had foreclosed at the time of the prisoner’s 9 trial, appeal, and first § 2255 motion. 10 Jones, 599 U.S. at 477. The Court unequivocally found that “the saving clause does not 11 authorize such an end-run around AEDPA.” Id. The Court held that “§ 2255(e)’s saving 12 clause does not permit a prisoner asserting an intervening change in statutory 13 interpretation to circumvent AEDPA’s restrictions on second or successive § 2255 14 motions by filing a § 2241 petition. Id. at 471. 15 Following Jones, the Eleventh Circuit Court of Appeals recognized that “[t]he 16 saving clause is concerned with the adequacy or effectiveness of the remedial vehicle . . . 17 not any court’s asserted errors of law.” Grimes v. FPC Pensacola Warden, 2023 WL 18 8018576, at *2 (11th Cir. Nov. 20, 2023) (quoting Jones v. Hendrix, 599 U.S. at 480 ). As 19 such, the court found that “the § 2255 remedial vehicle was adequate and effective to test 20 [a petitioner’s] claim, even if circuit precedent or a procedural bar would have foreclosed 21 it.” Grimes, 2023 WL 8018576 , at *2. 22 Here, Petitioner seeks to circumvent the AEDPA’s restrictions on filing second or 23 successive § 2255 motions by filing a § 2241 petition asserting that “[t]hroughout his 24 direct appeal, first § 2255 motion, subsequent § 2255 motions, and savings clause 25 petitions, Mr. Cantillo has been procedurally foreclosed in his challenge to the Florida 26 burglary conviction underlying his mandatory career offender penalty, which no longer 27 qualifies as a valid predicate for his sentence.” Petr.’s Mem. in Support of Pet. for Relief 28 Pursuant to 28 U.S.C.§ 2255(e), the “Savings Clause” (Doc. 1-1) at 12. Petitioner claims || that he “is actually innocent of his mandatory career offender sentence, and he has not 2|| had an unobstructed procedural shot at correcting his fundamental defect until now. □□□ at 13. Petitioner has pursued a direct appeal, filed two (2) § 2255 petitions, as well as two 4|| (2) § 2241 petitions prior to the one pending before this Court. His assertion that he has 5 || not had an “unobstructed procedural shot” is absurd. Petitioner is attempting exactly the 6|| kind of end run around the AEDPA’s restrictions on second or successive § 2255 motions 7\| foreclosed by Jones. Accordingly, this Court finds that it lacks jurisdiction to consider || the Petition (Doc. 1). — 9 — 10] OI. CONCLUSION AND RECOMMENDATION 11 For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DISMISSING WITH PREJUDICE Petitioner’s Petition 13 || for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1). 14 Pursuant to 28 U.S.C. § 636 (b) and Rule 72(b)(2), Federal Rules of Civil 15 || Procedure, any party may serve and file written objections within fourteen (14) days after 16 || being served with a copy of this Report and Recommendation. A party may respond to 17 || another party’s objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District || Court. If objections are filed, the parties should use the following case number: CV-23- || 0093-TUC-RCC. 21 Failure to file timely objections to any factual or legal determination of the || Magistrate Judge may result in waiver of the right of review. 23 Dated this 24th day of April, 2024. 25 Jou — 26 Enric J. M#kovich United States Magistrate Judge — 27 — — 28 — -14-