Paul E. Pavulak v. Barbara Von Blanckensee

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL E. PAVULAK,
Petitioner-Appellant,
v.
BARBARA VON BLANCKENSEE,
Respondent-Appellee.
No. 19-16314
D.C. No.
4:19-cv-00274-RM-JR
ORDER AND
AMENDED 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
Amended October 1, 2021
Before: Mary M. Schroeder, Milan D. Smith, Jr., and
Lawrence VanDyke, Circuit Judges.
Order;
Per Curiam Opinion

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PAVULAK V. VON BLANCKENSEE 2
SUMMARY*
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.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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

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PAVULAK V. VON BLANCKENSEE 4
innocence prong for that enhancement or either prong for the
§ 2251(e) enhancement.
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.
ORDER
The per curiam opinion filed August 4, 2021 (Docket
Entry No. 49), and reported at 7 F.4th 871, is amended, and
is replaced by the amended per curiam opinion filed with this
order.
With the opinion as amended, the panel has voted to deny
the petition for panel rehearing. Judges Smith and VanDyke
have voted to deny the petition for rehearing en banc, and
Judge Schroeder has so recommended.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

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PAVULAK V. VON BLANCKENSEE 5
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for rehearing or
rehearing en banc will be entertained.
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
typically must show (1) actual innocence, and (2) that he “has
not had an unobstructed procedural shot at presenting” his
challenge. 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

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PAVULAK V. VON BLANCKENSEE 6
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)
(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 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 unobstructed procedural shot at presenting his
claim and is therefore entitled to bring an escape hatch

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PAVULAK V. VON BLANCKENSEE 7
petition under § 2241. Such practice would effectively
overrule our precedent that there is no right to counsel in
federal post-conviction 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
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.

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PAVULAK V. VON BLANCKENSEE 8
The Respondent-Appellee’s Motion for Judicial Notice,
Docket No. 30, is granted.
AFFIRMED.

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