United States District Court, E.D. Arkansas, Eastern Division
Procedure for Filing Objections:
Recommended Disposition (Recommendation) has been sent to
Judge James M. Moody Jr. Petitioner Don Milton Steele may
file written objections with the Clerk of Court. To be
considered, objections must be filed within 14 days.
Objections should be specific and should include the factual
or legal basis for the objection.
Steele does not file objections, he risks waiving the right
to appeal questions of fact. And, if no objections are filed,
Judge Moody can adopt this Recommendation without
independently reviewing the record.
2012, Petitioner Don Milton Steele was convicted in the
United States District Court for the District of Kansas of
counterfeiting and drug-related offenses, as well as
possession of a firearm in furtherance of a drug-trafficking
crime, a violation of 18 U.S.C. § 924(c). His sentence
included two concurrent mandatory minimum terms of 20 years,
which the court imposed after finding that Mr. Steele had a
qualifying prior felony drug conviction for purposes of
imposing an enhanced sentence under 21 U.S.C. § 841(b).
U.S. v. Dyke,  718 F.3d 1282, 1292 (10th Cir. 2013).
The Tenth Circuit affirmed his conviction and the enhancement
of his sentence on direct appeal. Id. at 1294 In
2014, Mr. Steele filed a motion with the trial court under 28
U.S.C. § 2255. U.S. v. Steele, No.
10-20037-01-JWL, 2015 WL 1530554, at 1 (D. Kan. Apr. 6,
2015). The district court denied relief. Mr. Steele filed a
notice of appeal, arguing that the government had improperly
induced him into committing the offenses (outrageous
government conduct and/or entrapment) and had abused its
power in seeking an enhancement to his sentence based on an
expunged drug conviction. U.S. v. Steele, 616
Fed.Appx. 395, 396 (10th Cir. 2015). The Tenth Circuit
treated Mr. Steele's notice of appeal as a request for a
certificate of appealability and denied it. Id. The
Court pointed out that Mr. Steele did not raise his
outrageous government conduct or entrapment argument in his
§ 2255 motion; so, it would not consider it on appeal.
Id. (citation omitted). Further, it held that Mr.
Steele's arguments were frivolous, because they merely
rehashed arguments he had made on direct appeal, which it had
rejected. Id. (citing Dyke, 718 F.3d at
2018, Mr. Steele filed a motion for relief with the trial
court under Federal Rule of Civil Procedure 60. U.S. v.
Steele, 748 Fed.Appx. 858 (10th Cir. 2019). The trial
court construed the motion as an unauthorized second or
successive § 2255 petition and dismissed it for lack of
Steele has now filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241, claiming: that he is actually
innocent; that relief under 28 U.S.C. § 2255 is
inadequate; that public law 80-772 is invalid and, therefore,
the sentencing court lacked jurisdiction to sentence him and
confiscate his property; that the government failed to prove
subjective and objective tests of entrapment; and that the
government withheld evidence in violation of Brady.
(Docket entry #1) In his memorandum of law supporting his
petition, Mr. Steele argues that the savings clause provision
in §2255(e) applies, first, because of changes in the
law; and second, because he is actually innocent. (#2 at 1)
For relief, Mr. Steele seeks release or remand for
resentencing and an evidentiary hearing. (#1 at 7)
Court lacks jurisdiction over Mr. Steele's petition.
Generally, a federal inmate may challenge his conviction or
sentence only with the sentencing court through a motion to
vacate, set aside or correct his sentence, under 28 U.S.C.
§ 2255. Lopez-Lopez v. Sanders, 590 F.3d 905,
907 (8th Cir. 2010) (citing Abdullah v. Hedrick, 392
F.3d 957, 959 (8th Cir. 2004), cert. denied, 545 U.S. 1147
(2005)). A habeas corpus petition under 28 U.S.C. §
2241, on the other hand, attacks the execution of a sentence,
or the manner in which the sentence is being carried out.
Matheny v. Morrison, 307 F.3d 709, 711-712 (8th Cir.
court cannot entertain a petition for habeas corpus under
§ 2241, “if it appears that the applicant has
failed to apply for relief, by [§ 2255] motion, to the
court which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by [§
2255] motion is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e)
(emphasis added). The last clause is a provision generally
referred to as § 2255's “savings
clause.” Abdullah, 392 F.3d at 959.
petitioner who wishes to take advantage of the savings clause
must demonstrate that seeking relief from the sentencing
court would be inadequate or ineffective.
Lopez-Lopez, 590 F.3d at 907 (citing
Abdullah, 392 F.3d at 959). But this exception is a
“narrowly circumscribed safety valve.” U.S.
ex rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059,
1061-62 (8th Cir. 2002), cert. denied, 537 U.S. 869
(2002). The fact that an individual is barred from filing a
§ 2255 motion for procedural reasons does not render the
remedy inadequate or ineffective so as to permit a petitioner
to file under § 2241. Lopez-Lopez, 590 F.3d at
907. Furthermore, the § 2255 remedy is not inadequate or
ineffective because the claim was previously raised and
rejected in a § 2255 motion; or because the petitioner
was denied leave to file a second or successive § 2255
petition; or because a § 2255 petition is time-barred.
savings clause applies if the claim is based on a
retroactively applicable Supreme Court decision establishing
that a petitioner may have been convicted of a nonexistent
offense, and if the claim was foreclosed by circuit law at
the time when the claim should have been raised in the
petitioner's trial, appeal, or first § 2255 motion.
Mathison v. Berkebile, 988 F.Supp.2d 1091, 1098
(D.S.D. 2013) (citing Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001)); Perry v.
Beasley, No. 2:18-CV-00057-BSM-PSH, 2018 WL 5269383, at
2 (E.D. Ark. Oct. 10, 2018), report and recommendation
adopted, No. 2:18-CV-00057-BSM, 2018 WL 5270324 (E.D.
Ark. Oct. 23, 2018).
Steele claims that he is entitled to take advantage of the
savings clause because the United States Supreme Court's
decision in Mathis v. United States, U.S., 136 S.Ct.
2243 (2016), was decided after he filed his first §2255
motion; and, under Mathis, his prior convictions
under the Kansas State Control Substance Statute no longer
qualify under the sentencing guidelines as a drug trafficking
offenses. (#2 at 3) The Mathis decision,
however, did not announce a new rule of constitutional law to
be retroactively applied on collateral review under 28 U.S.C.
§ 2255(h)(2). Winarske v. United States, 913
F.3d 765, 768 (8th Cir. 2019); Martin v. United
States, 904 F.3d 594, 597 (8th Cir. 2018).
Steele also argues that under United States v. Dean,
U.S., 137 S.Ct. 1170 (2017), the district court should have
considered his mandatory minimum under 924(c) when
calculating his sentence for a predicate offense. (#2 at 4)
The United States Supreme Court did not address the
retroactive application of its ruling in Dean; nor
has the Eighth Circuit. District courts that have addressed
the issue, however, have found that Dean does not
retroactively apply to cases on collateral review. See
United States v. Brown, No. 12CR01723SRNAJB, 2018 WL
2135015, at 5-6 (D. Minn. 2018) (listing cases where courts
have concluded that Dean is not to be applied
retroactively for purposes of collateral appeal); see
also Rhodes v. United States, No. 4:15-CV-00432 JAR,
2018 WL 950223, at 6 (E.D. Mo. Feb. 20, 2018), appeal