FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court EDWARD KEITH DEMBRY,
Petitioner - Appellant,
v. No. 19-3224 (D.C. No. 5:19-CV-03162-JWL) DON HUDSON, Warden,* (D. Kan.)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT** _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
Appellant Edward Keith Dembry is a federal prisoner currently incarcerated in
Kansas, appearing pro se.1 He appeals the United States District Court for the District
of Kansas’s sua sponte dismissal of his 28 U.S.C. § 2241 petition. Exercising
* We have substituted the current warden at Leavenworth for the former warden under Fed. R. App. P. 43(c)(4). ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Dembry appears pro se, we liberally construe his pleadings but do not serve as his advocate. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). jurisdiction under 28 U.S.C. § 1291,2 we affirm and deny his motion to proceed in
forma pauperis.
BACKGROUND
In 2007, a jury convicted Dembry of being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). See United States v. Dembry, 535
F.3d 798, 799 (8th Cir. 2008). The United States District Court for the Southern
District of Iowa sentenced him to 265 months’ imprisonment after applying the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Id. Dembry appealed his
sentence to the Eighth Circuit Court of Appeals, which affirmed. Id.
The Kansas district court provides a succinct summary of Dembry’s attempts
to obtain postconviction relief. See Dembry v. English, No. 19-3162-JWL, 2019 WL
4601558, at *1 (D. Kan. Sept. 23, 2019). We briefly repeat this history to provide
context to the current appeal. Dembry filed his first 28 U.S.C. § 2255 motion in the
Southern District of Iowa, which it denied. See id. His corresponding petitions for a
Certificate of Appealability (COA) and for a writ of certiorari were also denied. See
id. Invoking Federal Rule of Civil Procedure 60(b), he moved the district court to
reconsider, which the court denied as an unauthorized second § 2255 motion. See id.
2 A federal prisoner need not seek a certificate of appealability to appeal a final order in a § 2241 proceeding. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d 164, 165–66 (10th Cir. 1996)).
2 In 2013, Dembry filed a motion for audita querela,3 which the district court construed
as a § 2255 motion and dismissed, and the Eighth Circuit denied a COA. See id. He
then filed another § 2255 motion that the district court dismissed, again followed by
the Eighth Circuit denying a COA. See id. In 2016, the Eighth Circuit allowed him to
file a successive § 2255 motion, which it ultimately denied. See id.; see also Dembry
v. United States, 914 F.3d 1185, 1186 (8th Cir. 2019) (affirming denial). Dembry has
also filed § 2241 petitions in the Southern District of Indiana and the Western
District of Pennsylvania. Dembry v. English, 2019 WL 4601558, at *1.
In August 2019, Dembry filed the subject § 2241 petition. He seeks immediate
release, alleging that he is actually innocent in light of the United States Supreme
Court’s recent decision Rehaif v. United States, 139 S. Ct. 2191 (2019), and also
challenging the sentencing court’s finding of the three qualifying convictions
required for ACCA’s application. The district court dismissed this petition without
prejudice, concluding that it did not have statutory jurisdiction because Dembry had
failed to show that § 2255’s remedy is inadequate or ineffective. Dembry v. English,
2019 WL 4601558, at *4.
ANALYSIS
We review de novo the district court’s denial of Dembry’s § 2241 petition. See
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citing Bowser v. Boggs, 20
3 “[A] writ of audita querela is used to challenge ‘a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition.’” United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002) (quoting United States v. Reyes, 945 F.2d 862, 863 n.1 (5th Cir. 1991)). 3 F.3d 1060, 1062 (10th Cir. 1994)). “Congress has told us that federal prisoners
challenging the validity of their convictions or sentences may seek and win relief
only under the pathways prescribed by § 2255.” Prost v. Anderson, 636 F.3d 578,
580 (10th Cir. 2011). The one exception to this rule, § 2241, is available “only if the
§ 2255 remedial mechanism is ‘inadequate or ineffective to test the legality of [the
prisoner’s] detention.’” Id. (quoting 28 U.S.C. § 2255(e)). The prisoner must
establish that the opportunity to pursue claims under § 2255 is “genuinely absent” to
seek redress under § 2241. Id. at 588. If the prisoner fails to establish that § 2255’s
remedy is inadequate or ineffective, the court lacks statutory jurisdiction to consider
the prisoner’s § 2241 motion. Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir.
2013).
To determine whether a prisoner may use § 2255(e)’s savings clause and
proceed via § 2241, we examine whether the prisoner’s “argument challenging the
legality of his detention could have been tested in an initial § 2255 motion.” Prost,
636 F.3d at 584. Section 2255 motions are used to attack a prisoner’s sentence or
conviction but § 2241 petitions are used to attack the nature of confinement. Id. at
581. Here, Dembry’s claims regarding Rehaif and ACCA properly belong in a § 2255
motion because these claims challenge his conviction and not the nature of his
confinement. See id.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court EDWARD KEITH DEMBRY,
Petitioner - Appellant,
v. No. 19-3224 (D.C. No. 5:19-CV-03162-JWL) DON HUDSON, Warden,* (D. Kan.)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT** _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
Appellant Edward Keith Dembry is a federal prisoner currently incarcerated in
Kansas, appearing pro se.1 He appeals the United States District Court for the District
of Kansas’s sua sponte dismissal of his 28 U.S.C. § 2241 petition. Exercising
* We have substituted the current warden at Leavenworth for the former warden under Fed. R. App. P. 43(c)(4). ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Dembry appears pro se, we liberally construe his pleadings but do not serve as his advocate. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). jurisdiction under 28 U.S.C. § 1291,2 we affirm and deny his motion to proceed in
forma pauperis.
BACKGROUND
In 2007, a jury convicted Dembry of being a felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). See United States v. Dembry, 535
F.3d 798, 799 (8th Cir. 2008). The United States District Court for the Southern
District of Iowa sentenced him to 265 months’ imprisonment after applying the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Id. Dembry appealed his
sentence to the Eighth Circuit Court of Appeals, which affirmed. Id.
The Kansas district court provides a succinct summary of Dembry’s attempts
to obtain postconviction relief. See Dembry v. English, No. 19-3162-JWL, 2019 WL
4601558, at *1 (D. Kan. Sept. 23, 2019). We briefly repeat this history to provide
context to the current appeal. Dembry filed his first 28 U.S.C. § 2255 motion in the
Southern District of Iowa, which it denied. See id. His corresponding petitions for a
Certificate of Appealability (COA) and for a writ of certiorari were also denied. See
id. Invoking Federal Rule of Civil Procedure 60(b), he moved the district court to
reconsider, which the court denied as an unauthorized second § 2255 motion. See id.
2 A federal prisoner need not seek a certificate of appealability to appeal a final order in a § 2241 proceeding. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d 164, 165–66 (10th Cir. 1996)).
2 In 2013, Dembry filed a motion for audita querela,3 which the district court construed
as a § 2255 motion and dismissed, and the Eighth Circuit denied a COA. See id. He
then filed another § 2255 motion that the district court dismissed, again followed by
the Eighth Circuit denying a COA. See id. In 2016, the Eighth Circuit allowed him to
file a successive § 2255 motion, which it ultimately denied. See id.; see also Dembry
v. United States, 914 F.3d 1185, 1186 (8th Cir. 2019) (affirming denial). Dembry has
also filed § 2241 petitions in the Southern District of Indiana and the Western
District of Pennsylvania. Dembry v. English, 2019 WL 4601558, at *1.
In August 2019, Dembry filed the subject § 2241 petition. He seeks immediate
release, alleging that he is actually innocent in light of the United States Supreme
Court’s recent decision Rehaif v. United States, 139 S. Ct. 2191 (2019), and also
challenging the sentencing court’s finding of the three qualifying convictions
required for ACCA’s application. The district court dismissed this petition without
prejudice, concluding that it did not have statutory jurisdiction because Dembry had
failed to show that § 2255’s remedy is inadequate or ineffective. Dembry v. English,
2019 WL 4601558, at *4.
ANALYSIS
We review de novo the district court’s denial of Dembry’s § 2241 petition. See
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citing Bowser v. Boggs, 20
3 “[A] writ of audita querela is used to challenge ‘a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition.’” United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002) (quoting United States v. Reyes, 945 F.2d 862, 863 n.1 (5th Cir. 1991)). 3 F.3d 1060, 1062 (10th Cir. 1994)). “Congress has told us that federal prisoners
challenging the validity of their convictions or sentences may seek and win relief
only under the pathways prescribed by § 2255.” Prost v. Anderson, 636 F.3d 578,
580 (10th Cir. 2011). The one exception to this rule, § 2241, is available “only if the
§ 2255 remedial mechanism is ‘inadequate or ineffective to test the legality of [the
prisoner’s] detention.’” Id. (quoting 28 U.S.C. § 2255(e)). The prisoner must
establish that the opportunity to pursue claims under § 2255 is “genuinely absent” to
seek redress under § 2241. Id. at 588. If the prisoner fails to establish that § 2255’s
remedy is inadequate or ineffective, the court lacks statutory jurisdiction to consider
the prisoner’s § 2241 motion. Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir.
2013).
To determine whether a prisoner may use § 2255(e)’s savings clause and
proceed via § 2241, we examine whether the prisoner’s “argument challenging the
legality of his detention could have been tested in an initial § 2255 motion.” Prost,
636 F.3d at 584. Section 2255 motions are used to attack a prisoner’s sentence or
conviction but § 2241 petitions are used to attack the nature of confinement. Id. at
581. Here, Dembry’s claims regarding Rehaif and ACCA properly belong in a § 2255
motion because these claims challenge his conviction and not the nature of his
confinement. See id. Dembry has, in fact, already used § 2255 to challenge his ACCA
sentence under Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United
States, 136 S. Ct. 1257 (2016), and the Eighth Circuit denied him relief. See Dembry
v. United States, 914 F.3d at 1188. Any argument that this denial was erroneous
4 “does not render the procedural mechanism Congress provided for bringing that
claim . . . an inadequate or ineffective remedial vehicle for testing its merits within
the plain meaning of the savings clause.” Prost, 636 F.3d at 590. Further, that Rehaif
did not exist when Dembry initially filed his § 2255 motion or that adverse circuit
precedent existed at the time does not render § 2255’s procedure ineffective or
inadequate. See id. at 589–93. The savings clause in § 2255(e) does not apply here
and the district court properly concluded it lacked jurisdiction to review Dembry’s
§ 2241 petition.
Further, Dembry has not attempted to show that § 2255(e)’s savings clause
applies besides merely stating that § 2255’s remedy is ineffective. His argument on
appeal seems to be only that we should sidestep the statutory-jurisdictional bar and
reach the merits “as a matter of ‘due process.’” Opening Br. at 4. But Dembry is
receiving the process that is due, and he has not asserted that denying him access to
§ 2241 presents a constitutional issue. We must follow Congress’s mandate and
require Dembry to pursue his claims via § 2255’s procedure. The district court
properly dismissed without prejudice Dembry’s § 2241 petition.
Dembry also filed a motion to proceed in forma pauperis. “In order to succeed
on his motion, an appellant must show a financial inability to pay the required filing
fees and the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991) (citing 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S.
438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir. 1962)). Because Dembry simply
5 stated that § 2255’s remedy is ineffective without argument, we cannot grant his
motion.
CONCLUSION
We affirm the district court’s dismissal of Dembry’s petition for lack of
statutory jurisdiction and deny Dembry’s motion to proceed in forma pauperis.
Entered for the Court
Gregory A. Phillips Circuit Judge