Pavulak v. von Blanckensee, No. 19-16314 (9th Cir. 2021)

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The Ninth Circuit affirmed the district court's dismissal of a 28 U.S.C. 2241 petition in which petitioner challenged two sentencing enhancements—one under 18 U.S.C. 2251(e), another under 18 U.S.C. 3559(e)(1)—applied after his conviction on multiple counts of federal sex offenses.

The panel held that petitioner's claim is foreclosed because the legal basis for his claim arose before he had exhausted his section 2255 motion, so he cannot show that he did not have an unobstructed procedural shot at presenting his challenge to the section 3559(e)(1) sentencing enhancement. The panel rejected petitioner's request for an extension of Martinez v. Ryan, 566 U.S. 1 (2012), concluding that an extension of Martinez would make little sense. The panel explained that it would open the door for every unsuccessful pro se petitioner under section 2255 to argue that his lack of counsel in his original section 2255 petition meant that he did not have an unobstructed procedural shot at presenting his claim and is therefore entitled to bring an escape hatch petition under section 2241. The panel noted that other circuits have similarly held that prisoners may not utilize Martinez to bring a section 2241 petition. Because petitioner cannot show that he lacked an unobstructed procedural shot with respect to the section 3559(e)(1) mandatory life sentencing enhancement, the panel did not need to reach the actual innocence prong for that enhancement or either prong for the section 2251(e) enhancement.

Court Description: Habeas Corpus. The panel affirmed the district court’s dismissal of federal prisoner Paul Pavulak’s 28 U.S.C. § 2241 petition in which he challenged two sentencing enhancements—one under 18 U.S.C. § 2251(e), another under 18 U.S.C. § 3559(e)(1)—applied after his conviction on multiple counts of federal sex offenses. Generally, a federal prisoner may only challenge the legality of his confinement through a 28 U.S.C. § 2255 motion. Under the “escape hatch” provision of § 2255(e), a federal prisoner may file a § 2241 petition, but only if the § 2255 remedy is inadequate or ineffective to test the legality of his detention. In a § 2241 petition, the prisoner must show (1) actual innocence, and (2) that he has not had an unobstructed procedural shot at presenting his challenge. To determine whether a petitioner has not had an unobstructed procedural shot, a court looks to (1) whether the legal basis for petitioner’s claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner’s claim after that first § 2255 motion. The parties agreed that Pavulak must meet both prongs for each of the sentencing enhancements. The panel held that Pavulak’s claim is foreclosed. Pavulak relied on Mathis v. United States, 136 S. Ct. 2243 PAVULAK V. VON BLANCKENSEE 3 (2016), and United States v. Dahl, 833 F.3d 345 (3d Cir. 2016), to challenge his sentencing enhancement under § 3559(e)(1), yet he concedes that both of those decisions came down before he had exhausted his original § 2255 motion. Thus, the legal basis for his claim arose before he had exhausted his § 2255 motion, so he cannot show that he did not have an unobstructed procedural shot at presenting his challenge to the § 3559(e)(1) sentencing enhancement. The panel rejected Pavulak’s argument for an extension of Martinez v. Ryan, 566 U.S. 1 (2012), to the § 2241 context. The panel explained that this court has already held in Buenrostro v. United States, 697 F.3d 1137 (9th Cir. 2012), that Martinez does not apply to federal convictions, and that while Buenrostro concerned an application to file a second or successive petition under § 2255, the holding with respect to Martinez is applicable in the § 2241 context as well. The panel wrote that extending Martinez would open the door for every unsuccessful pro se petitioner under § 2255 to argue that his lack of counsel in his original § 2255 petition meant that he did not have an obstructed procedural shot at presenting his claim and is therefore entitled to bring an escape hatch petition. The panel explained that this would effectively overrule this court’s precedent that there is no right to counsel in federal post-conviction proceedings, and would undermine this court’s admonition that use of the escape hatch is an exception to the general rule. The panel concluded that because Pavulak cannot show he lacked an unobstructed procedural shot with respect to the § 3559(e)(1) enhancement, it did not need to reach the actual innocence prong for that enhancement or either prong for the § 2251(e) enhancement. 4 PAVULAK V. VON BLANCKENSEE

The court issued a subsequent related opinion or order on October 1, 2021.

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PAUL E. PAVULAK, Petitioner-Appellant, No. 19-16314 v. D.C. No. 4:19-cv-00274-RM-JR BARBARA VON BLANCKENSEE, Respondent-Appellee. OPINION Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding Argued and Submitted June 16, 2021 San Francisco, California Filed August 4, 2021 Before: Mary M. Schroeder, Milan D. Smith, Jr., and Lawrence VanDyke, Circuit Judges. Per Curiam Opinion 2 PAVULAK V. VON BLANCKENSEE SUMMARY* Habeas Corpus The panel affirmed the district court’s dismissal of federal prisoner Paul Pavulak’s 28 U.S.C. § 2241 petition in which he challenged two sentencing enhancements—one under 18 U.S.C. § 2251(e), another under 18 U.S.C. § 3559(e)(1)—applied after his conviction on multiple counts of federal sex offenses. Generally, a federal prisoner may only challenge the legality of his confinement through a 28 U.S.C. § 2255 motion. Under the “escape hatch” provision of § 2255(e), a federal prisoner may file a § 2241 petition, but only if the § 2255 remedy is inadequate or ineffective to test the legality of his detention. In a § 2241 petition, the prisoner must show (1) actual innocence, and (2) that he has not had an unobstructed procedural shot at presenting his challenge. To determine whether a petitioner has not had an unobstructed procedural shot, a court looks to (1) whether the legal basis for petitioner’s claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner’s claim after that first § 2255 motion. The parties agreed that Pavulak must meet both prongs for each of the sentencing enhancements. The panel held that Pavulak’s claim is foreclosed. Pavulak relied on Mathis v. United States, 136 S. Ct. 2243 * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PAVULAK V. VON BLANCKENSEE 3 (2016), and United States v. Dahl, 833 F.3d 345 (3d Cir. 2016), to challenge his sentencing enhancement under § 3559(e)(1), yet he concedes that both of those decisions came down before he had exhausted his original § 2255 motion. Thus, the legal basis for his claim arose before he had exhausted his § 2255 motion, so he cannot show that he did not have an unobstructed procedural shot at presenting his challenge to the § 3559(e)(1) sentencing enhancement. The panel rejected Pavulak’s argument for an extension of Martinez v. Ryan, 566 U.S. 1 (2012), to the § 2241 context. The panel explained that this court has already held in Buenrostro v. United States, 697 F.3d 1137 (9th Cir. 2012), that Martinez does not apply to federal convictions, and that while Buenrostro concerned an application to file a second or successive petition under § 2255, the holding with respect to Martinez is applicable in the § 2241 context as well. The panel wrote that extending Martinez would open the door for every unsuccessful pro se petitioner under § 2255 to argue that his lack of counsel in his original § 2255 petition meant that he did not have an obstructed procedural shot at presenting his claim and is therefore entitled to bring an escape hatch petition. The panel explained that this would effectively overrule this court’s precedent that there is no right to counsel in federal post-conviction proceedings, and would undermine this court’s admonition that use of the escape hatch is an exception to the general rule. The panel concluded that because Pavulak cannot show he lacked an unobstructed procedural shot with respect to the § 3559(e)(1) enhancement, it did not need to reach the actual innocence prong for that enhancement or either prong for the § 2251(e) enhancement. 4 PAVULAK V. VON BLANCKENSEE COUNSEL Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant. Robert L. Miskell (argued), Assistant United States Attorney; Christina M. Cabanillas, Deputy Appellate Chief; Michael Bailey, United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Respondent-Appellee. OPINION PER CURIAM: Paul Pavulak, a federal prisoner incarcerated in Arizona, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition. He challenges two sentencing enhancements applied after a conviction on multiple counts of federal sex offenses. See 18 U.S.C. §§ 2251(e) (thirty-five years to life), 3559(e)(1) (mandatory life). Generally, a federal prisoner may only challenge the legality of his confinement through a 28 U.S.C. § 2255 motion. Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). Under the “escape hatch” provision of § 2255(e), however, a federal prisoner may file a § 2241 petition, but only if the § 2255 remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); see also Marrero, 682 F.3d at 1192. In a § 2241 petition, the prisoner must show (1) actual innocence, and (2) that he “has not had an unobstructed procedural shot at presenting” his challenge. PAVULAK V. VON BLANCKENSEE 5 Marrero, 682 F.3d at 1192 (citations and internal quotation marks omitted). To determine whether a petitioner has not had an unobstructed procedural shot, we look to: “(1) whether the legal basis for petitioner’s claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner’s claim after that first § 2255 motion.” Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (citations and internal quotation marks omitted). The parties agree that Pavulak must meet both prongs for each of the sentencing enhancements. See Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000). We hold that Pavulak’s claim is foreclosed. Pavulak relies on Mathis v. United States, 136 S. Ct. 2243 (2016) and United States v. Dahl, 833 F.3d 345 (3d Cir. 2016) to challenge his sentencing enhancement under 18 U.S.C. § 3559(e)(1), yet he concedes that both of those decisions came down before he had exhausted his original § 2255 motion. Thus, the legal basis for his claim arose before he had exhausted his § 2255 motion, so he cannot show that he did not have an unobstructed procedural shot at presenting his challenge to the § 3559(e)(1) sentencing enhancement. Pavulak argues for an extension of Martinez v. Ryan, 566 U.S. 1 (2012) to the § 2241 context. We have already held that Martinez does not apply to federal convictions. Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012). While Buenrostro concerned an application to file a second or successive petition under 28 U.S.C. § 2255, our holding with respect to Martinez is applicable in the § 2241 context as well. Id. at 1139. Federal prisoners are not entitled to counsel in post-conviction proceedings. See Sanchez v. United States, 50 F.3d 1448, 1456 (9th Cir. 1995) 6 PAVULAK V. VON BLANCKENSEE (explaining “there is no constitutional right to counsel at a collateral, post-conviction section 2255 proceeding”). Practically speaking, an extension of Martinez thus makes little sense. It would open the door for every unsuccessful pro se petitioner under § 2255 to argue that his lack of counsel in his original § 2255 petition meant that he did not have an unobstructed procedural shot at presenting his claim and is therefore entitled to bring an escape hatch petition under § 2241. Such practice would effectively overrule our precedent that there is no right to counsel in federal postconviction proceedings. See id. And it would undermine our admonition that use of the “escape hatch” is “[a]n exception to the general rule,” Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020), not an opportunity for every individual who initially filed a pro se habeas petition to have a second chance at habeas relief. Other circuits have similarly held that prisoners may not utilize Martinez to bring a § 2241 petition. See, e.g., Lee v. Watson, 964 F.3d 663, 667 (7th Cir. 2020), cert. denied, 141 S. Ct. 195 (2020); Jackman v. Shartle, 535 F. App’x 87, 89 n.5 (3d Cir. 2013) (per curiam). The Seventh Circuit has extended Martinez to allow federal prisoners to reopen an action under § 2255, pursuant to Federal Rule of Civil Procedure 60, when that motion to reopen “was not a disguised second or successive motion under section 2255.” See Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015). The Seventh Circuit has since clarified that Martinez does not apply to federal prisoners filing a § 2241 petition. See Purkey v. United States, 964 F.3d 603, 617–18 (7th Cir. 2020), cert. denied, 141 S. Ct. 196 (2020). Accordingly, Martinez is inapplicable to Pavulak’s § 2241 petition. Because Pavulak cannot show he lacked an PAVULAK V. VON BLANCKENSEE 7 unobstructed procedural shot with respect to the § 3559(e)(1) mandatory life sentencing enhancement, we do not need to reach the actual innocence prong for that enhancement or either prong for the § 2251(e) enhancement. The Respondent-Appellee’s Motion for Judicial Notice, Docket No. 30, is granted. AFFIRMED.

Primary Holding

The Ninth Circuit affirmed the district court's dismissal of a 28 U.S.C. 2241 petition in which petitioner challenged two sentencing enhancements applied after his conviction on multiple counts of federal sex offenses; prisoners may not utilize Martinez v. Ryan to bring a section 2241 petition.

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