OPINION AND ORDER ON REMAND
REED C. O'CONNOR, District Judge.
This habeas action pursuant to 28 U.S.C. § 2241 was filed by petitioner, Tiofila Santillana, a federal prisoner who was confined in the Federal Medical Center-Carswell (FMC-Carswell) in Fort Worth, Texas, at the time the petition was filed, against Jody R. Upton, warden of FMC-Carswell, Respondent. On June 3, 2015, this Court dismissed the action for lack of jurisdiction on the basis that Petitioner had failed to invoke the jurisdiction of this Court under § 2241 by satisfying the requirements of the so-called "savings clause" under 28 U.S.C. § 2255(e). Op. and Order and Final J., ECF Nos. 12 & 13. On January 16, 2017, the Fifth Circuit reversed the judgment of dismissal and remanded the case to this Court for reconsideration of the jurisdictional issue, having determined that the Supreme Court decision in Burrage v. United States, 134 S.Ct. 881 (2014), applies retroactively to cases on collateral review for purposes of a "savings clause" analysis. For the following reasons, the petition is granted.
Petitioner is serving a 240-month term of imprisonment for her 2009 conviction in the United States District of Texas, Western Division, Case No. 7:08-CR-153(1)-RAJ, for distribution of methadone resulting in the death of Brandon Moore. Resp't's Supp. App. at 1, ECF No. 32-1.
By this petition, Petitioner challenges the legality of her conviction and enhanced sentence under 21 U.S.C. § 841(b)(1)(C) by arguing that Moore's death did not result from methadone ingestion as required under Burrage, and instead was the result of a "mixed drug intoxication" — i.e., a combination of drugs. Pet. 3-5, ECF No. 1. In Burrage, the Supreme Court interpreted the "death results" enhancement set forth in 21 U.S.C. § 841(b)(1)(C) and held that "at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. 841(b)(1)(C) unless such use is a but-for cause of the death or injury." Id. at 892 (emphasis added). Petitioner argued that because the evidence at her trial did not prove that but for the methadone Moore would not have died, she is actually innocent of her conviction and sentence. Pet. 5, ECF No. 1
Title 28, United States Code § 2255 is the primary means under which a federal prisoner may collaterally attack the legality of a conviction or sentence. Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). However, a § 2241 petition attacking a federal conviction or sentence may be considered if the petitioner establishes that the remedy under § 2255 is inadequate or ineffective to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). In order to meet this burden, a petitioner must show that (1) his claim is based on a retroactively applicable Supreme Court decision, (2) his claim was foreclosed by circuit law at the time when the claim should have been raised in his trial, appeal, or first § 2255 motion, and (3) that retroactively applicable decision establishes that he may have been convicted of a nonexistent offense. Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010); Reyes-Requena, 243 F.3d at 904.
The parties agree, and the Court finds, that these requirements have been met. Accordingly, this Court has jurisdiction to consider Petitioner's claim in the context of a § 2241 habeas petition. Resp't's Supp. Mem. 3, ECF No. 31; Pet'r's Supp. Mem. 11, ECF No. 33. The parties also agree that Burrage renders the enhanced-penalty provision under § 841(b)(1)(C) inapplicable to Petitioner. Resp't's Supp. Mem. 3-4, ECF No. 31; Pet'r's Supp. Mem. 13-14, ECF No. 33. Thus, the only question that remains is what is the appropriate relief under the circumstances.
The government has provided the following argument:
Resp't's Supp. Mem. 4-5, ECF No. 31 (emphasis in original) (citations omitted).
Similarly, Petitioner has provided the following argument:
Pet'r's' Supp. Mem. 14, ECF No. 33 (emphasis in original).
The arguments share a common theme, which the parties appear to embrace and the Court finds persuasive.
Therefore, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is conditionally GRANTED as follows: