United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad, Senior United States District Judge.
Bryant Cook, a federal inmate proceeding pro se,
filed this action as a petition for a writ of habeas corpus
under 28 U.S.C. § 2241. Cook alleges that he should be
resentenced, because his federal sentence as imposed has
since become unlawful under Mathis v. United States,
___ U.S. ___, 136 S.Ct. 2243 (2016). Upon review of the
record, the court concludes that Cook's claim for relief
under § 2241 must be dismissed for lack of jurisdiction.
records indicate that in October 1996, a grand jury in the
United States District Court for the Eastern District of
Tennessee, Chattanooga Division, returned a second
superseding indictment charging Cook in two of 38 counts.
Specifically, Count One charged Cook with conspiracy to
possess with the intent to distribute a detectable amount of
cocaine and cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846; and Count Two charged Cook
with conspiracy to defraud the United States, in violation of
18 U.S.C. § 371. In February 1997, the government filed
an amended information under 21 U.S.C. § 851(a)(1),
notifying Cook that it intended to seek a mandatory minimum
life sentence on Count One, based on two prior felony drug
convictions under California law: possession of phencyclidine
(also known as PCP) for resale and possession of cocaine for
resale. See Mot. Dism. Ex. C, Ex. D, ECF No. 11.
ultimately found Cook guilty on Count One. On June 16, 1997,
the Tennessee district court granted the government's
motion for the 851 enhancement, based on his two prior
California drug felonies. Instead of the ten-year mandatory
minimum Cook would have faced without the enhancement, the
court sentenced Cook to a term of mandatory life in prison,
pursuant to 21 U.S.C. § 841(b)(1)(A). His appeals were
unsuccessful. See United States v. Rooks, 181 F.3d
105, at *5 n.5 (6th Cir. 1999) (unpublished), cert.
denied, 528 U.S. 1126 (2000).
previously filed a § 2255 motion in the Eastern District
of Tennessee, concerning this conviction and sentence. It was
ultimately denied, and his appeals were unsuccessful. See
Cook v. United States, 246 Fed.Appx. 990 (6th Cir.
2007), cert. denied, 553 U.S. 1090 (2008).
current petition under § 2241, Cook contends that in
light of the Mathis decision, his two California
drug felonies no longer qualify as predicates for an
enhancement of his sentence under § 851 and §
841(b)(1)(A), and that he should be resentenced without the
enhancement. The government has filed a motion to dismiss, to
which Cook has responded, making the motion ripe for
federal prisoner bringing a claim for relief from an
allegedly illegal sentence must normally do so in a §
2255 motion in the sentencing court. Section 2255(e) provides
that a § 2241 habeas petition raising such a
claim “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.” 28 U.S.C. § 2255(e) (emphasis
added). The fact that relief under § 2255 is barred,
procedurally or by the gatekeeping requirements of §
2255, does not render the remedy inadequate or ineffective.
In re Jones, 226 F.3d at 332; see also
Cradle v. United States, 290 F.3d 536, 538-39 (3d
Cir. 2002) (“It is the inefficacy of the remedy, not
the personal inability to use it, that is determinative.
Section 2255 is not inadequate or ineffective merely because
the sentencing court does not grant relief, the one-year
statute of limitations has expired, or the petitioner is
unable to meet the stringent gatekeeping requirements of the
amended § 2255.”).
circuit courts of appeals, including the United States Court
of Appeals for the Fourth Circuit, have held that the last
phrase in § 2255(e), known as the savings clause, is
jurisdictional. United States v. Wheeler, 886 F.3d
415, 424-25 (4th Cir. 2018), cert. denied, 139 S.Ct.
1318, 203 L.Ed.2d 600 (2019) (citing Williams v.
Warden, 713 F.3d 1332 (11th Cir. 2013)). In other words,
the savings clause “commands the district court not to
entertain a § 2241 petition that raises a claim
ordinarily cognizable in the petitioner's first §
2255 motion except in . . . exceptional
circumstance[s].” Id. at 425. In this circuit,
the remedy in § 2255 is inadequate and ineffective to
test the legality of a sentence when:
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this retroactive change,
the sentence now presents an error sufficiently grave to be
deemed a fundamental defect.
Id. at 429. Thus, unless Cook demonstrates that the
circumstances of his case satisfy the four-part test in
Wheeler so that the savings clause applies to permit
his sentence challenge under Mathis and
Johnson in a § 2241 petition, this court has no
“power to act” on his § 2241 claim.
makes the following arguments by which he contends that he
meets the Wheeler factors to bring his sentence
challenge in a § 2241 petition. First, Cook's
sentence was legal under settled law at the time of
sentencing in 1997. Second, after Cook's appeal and first
§ 2255 motion, the Supreme Court decided Mathis
under its prior precedents, making Mathis an old
rule that applies on collateral review. See Whorton v.
Bockting, 549 U.S. 406, 416 (2007) (“an old rule
applies both on direct and collateral review, but a new rule
is generally applicable only to cases that are still on
direct review.”). Third, Cook is unable to meet the
gatekeeping provisions of § 2255(h)(2), because
Mathis is a decision of statutory law, not
constitutional law. Fourth, the enhancement of Cook's
sentence under § 841(b)(1)(A) constitutes a fundamental
defect, because after Mathis, it exceeds the
otherwise applicable statutory maximum penalty for his
prevailing position in this circuit is that Mathis
did not make a retroactive change in substantive law as
contemplated by the analysis set forth in Wheeler.
See, e.g., Mathis, 136 S.Ct. at
2257 (“Our precedents make this a straightforward case.
For more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only, comparing
elements.”); Walker v. Kassell, 726 Fed.Appx.
191, 192 (4th Cir. 2018) (per curiam) (“[W]e affirm
because . . . Mathis . . . has not been held