Opinion
Case No. 17-CV-1108 (PJS/DTS)
06-20-2017
LAMAR BLAKE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Lamar Blake, pro se.
ORDER Lamar Blake, pro se.
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge David T. Schultz. Judge Schultz recommends dismissing petitioner Lamar Blake's 28 U.S.C. § 2241 petition for lack of jurisdiction. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on that review, the Court adopts the R&R.
Blake did not object to Judge Schultz's R&R, but he has moved to supplement his petition. Specifically, Blake seeks to add a claim under Mathis v. United States, 136 S. Ct. 2243 (2016), contending that his Guidelines range was incorrectly calculated because he was erroneously subjected to the career-offender enhancement. Mathis, however, does not represent a change in the law; instead, "its decision was dictated by decades of prior precedent." See United States v. Taylor, 672 F. App'x 860, 864 (10th Cir. 2016). Nothing prevented Blake from making Mathis-type arguments at an earlier stage in his criminal case or as part of his motion under 28 U.S.C. § 2255. Because Blake's proposed supplement does not establish that his remedy under § 2255 "is inadequate or ineffective to test the legality of his detention," 28 U.S.C. § 2255(e), it is denied as futile.
This is Blake's second motion to supplement; Judge Schultz recommends granting the first motion. --------
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, the Court ADOPTS the R&R [ECF No. 5]. Accordingly, IT IS HEREBY ORDERED THAT:
1. Petitioner's motion to supplement [ECF No. 2] is GRANTED.Dated: June 20, 2017
2. Petitioner's 28 U.S.C. § 2241 petition [ECF No. 1], as supplemented by ECF No. 2, is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
3. Petitioner's application to proceed in forma pauperis [ECF No. 3] is DENIED.
4. Petitioner's motion to appoint counsel [ECF No. 4] is DENIED.
5. Petitioner's second motion to supplement [ECF No. 6] is DENIED as futile. LET JUDGMENT BE ENTERED ACCORDINGLY.
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge