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

Court Description: Habeas Corpus. The panel withdrew a per curiam opinion filed August 4, 2021; filed an amended per curiam opinion affirming the district court’s dismissal of federal prisoner Paul Pavulak’s 28 U.S.C. § 2241 petition; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc, in a case in which Pavulak 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 typically 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. PAVULAK V. VON BLANCKENSEE 3 In the amended opinion, the panel held that Pavulak’s claim is foreclosed. Pavulak relied 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 § 3559(e)(1), yet he conceded 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 virtually 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 4 PAVULAK V. VON BLANCKENSEE innocence prong for that enhancement or either prong for the § 2251(e) enhancement.

This opinion or order relates to an opinion or order originally issued on August 4, 2021.