Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 15, 2024 _________________________________ Christopher M. Wolpert Clerk of Court PETER GEORGE NOE,
Petitioner - Appellant,
v. No. 23-1304 (D.C. No. 1:22-CV-01618-LTB-STV) A. CIOLLI, (Warden), (D. Colo.)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, BALDOCK, and McHUGH, Circuit Judges. _________________________________
Peter George Noe is a federal prisoner housed at the USP Florence ADX
(ADX) detention facility operated by the Bureau of Prisons (BOP). Proceeding
pro se, he filed an application in the United States District Court for the District of
Colorado for a writ of habeas corpus under 28 U.S.C. § 2241, which he later
amended. He appeals from the district court’s order dismissing his amended
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 2
application for lack of statutory jurisdiction. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I
Noe asserted two claims in his amended application under § 2241. First, he
challenged the BOP’s implementation of the First Step Act (Act) at ADX. Second,
he recognized that the BOP’s system for implementing good-time credits under the
Act properly uses a prisoner’s criminal history score from their presentence report;
however, he maintained that he was wrongly denied good-time credits because his
presentence report contains errors that resulted in a criminal history score that was
too high. For relief, Noe requested that he “be resentenced to correct the sentencing
errors in his [presentence report] to allow him to earn his full [good-time] credits.”
R., vol. I at 42.
Because § 2241 applications must be brought in the district where the prisoner
is incarcerated, Noe filed his application in federal district court in Colorado. Later,
he filed a motion to transfer claim two to the United States District Court for the
District of Minnesota—the court in which he was convicted and sentenced. Noe
maintained that transfer was “in the interest of justice” because claim two “deals with
errors” in the presentence report and the “sentencing judge knows of the errors, the
case, and has all of the documents and records in the case.” R., vol. I at 96.
A magistrate judge recommended that the first claim be dismissed as
duplicative because the same claim was pending in a different suit by Noe against
USP-ADX. Further, the magistrate judge recommended that the second claim be
2 Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 3
dismissed without prejudice for lack of statutory jurisdiction and denied the
motion to transfer.
Noe filed objections to the report and recommendation. While the
objections were pending, he filed a motion to voluntarily dismiss the first claim.
The district court (1) overruled Noe’s objections; (2) dismissed the first claim under
Fed. R. Civ. P. 41(a)(1)(A)(i); (3) adopted the magistrate judge’s recommendation
and dismissed the second claim without prejudice for lack of subject-matter
jurisdiction; and (4) denied Noe’s motion to proceed without prepayment of fees on
appeal.
II
“We review the district court’s dismissal of a § 2241 habeas petition de novo.”
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation
marks omitted). Because Noe proceeds pro se, we construe his pleadings liberally.
See id.
III
A federal prisoner may pursue habeas relief under two statutes. The first is
§ 2241. An application under § 2241 “typically attacks the execution of a sentence
rather than its validity and must be filed in the district where the prisoner is
confined.” Brace, 634 F.3d at 1169 (internal quotation marks omitted). The second
avenue of relief is 28 U.S.C. § 2255. “Congress created § 2255 as a separate
remedial vehicle specifically designed for federal prisoners’ collateral attacks on
their sentences.” Jones v. Hendrix, 599 U.S. 465, 473 (2023). “A § 2255 motion is
3 Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 4
ordinarily the only means to challenge the validity of a federal conviction following
the conclusion of direct appeal.” Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016).
“But in rare instances,” the “savings clause in § 2255(e)” permits a prisoner to
attack a conviction through a § 2241 habeas corpus application. Hale, 829 F.3d at
1165 (citation and internal quotation marks omitted). The saving clause provides:
An application for a writ of habeas corpus [pursuant to § 2241] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion [pursuant to § 2255] is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e) (emphasis added). The applicant “bears the burden of showing
he satisfies § 2255(e).” Hale, 829 F.3d at 1170.
In Jones, the Court explained that the circumstances in which the saving clause
applies are narrow and “cover[] unusual circumstances in which it is impossible or
impracticable for a prisoner to seek relief from the sentencing court” in a § 2255
motion. 599 U.S. at 474 (giving examples such as the dissolution of the sentencing
court).
Putting a slightly finer point on the issue, the test for whether a supposed
§ 2241 falls within the saving clause is “whether a petitioner’s argument challenging
the legality of his detention could have been tested in an initial § 2255 motion.”
Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (Gorsuch, J.). “If the answer
is yes, then the petitioner may not resort to the savings clause and § 2241.” Id. This
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Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 15, 2024 _________________________________ Christopher M. Wolpert Clerk of Court PETER GEORGE NOE,
Petitioner - Appellant,
v. No. 23-1304 (D.C. No. 1:22-CV-01618-LTB-STV) A. CIOLLI, (Warden), (D. Colo.)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MATHESON, BALDOCK, and McHUGH, Circuit Judges. _________________________________
Peter George Noe is a federal prisoner housed at the USP Florence ADX
(ADX) detention facility operated by the Bureau of Prisons (BOP). Proceeding
pro se, he filed an application in the United States District Court for the District of
Colorado for a writ of habeas corpus under 28 U.S.C. § 2241, which he later
amended. He appeals from the district court’s order dismissing his amended
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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. Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 2
application for lack of statutory jurisdiction. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I
Noe asserted two claims in his amended application under § 2241. First, he
challenged the BOP’s implementation of the First Step Act (Act) at ADX. Second,
he recognized that the BOP’s system for implementing good-time credits under the
Act properly uses a prisoner’s criminal history score from their presentence report;
however, he maintained that he was wrongly denied good-time credits because his
presentence report contains errors that resulted in a criminal history score that was
too high. For relief, Noe requested that he “be resentenced to correct the sentencing
errors in his [presentence report] to allow him to earn his full [good-time] credits.”
R., vol. I at 42.
Because § 2241 applications must be brought in the district where the prisoner
is incarcerated, Noe filed his application in federal district court in Colorado. Later,
he filed a motion to transfer claim two to the United States District Court for the
District of Minnesota—the court in which he was convicted and sentenced. Noe
maintained that transfer was “in the interest of justice” because claim two “deals with
errors” in the presentence report and the “sentencing judge knows of the errors, the
case, and has all of the documents and records in the case.” R., vol. I at 96.
A magistrate judge recommended that the first claim be dismissed as
duplicative because the same claim was pending in a different suit by Noe against
USP-ADX. Further, the magistrate judge recommended that the second claim be
2 Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 3
dismissed without prejudice for lack of statutory jurisdiction and denied the
motion to transfer.
Noe filed objections to the report and recommendation. While the
objections were pending, he filed a motion to voluntarily dismiss the first claim.
The district court (1) overruled Noe’s objections; (2) dismissed the first claim under
Fed. R. Civ. P. 41(a)(1)(A)(i); (3) adopted the magistrate judge’s recommendation
and dismissed the second claim without prejudice for lack of subject-matter
jurisdiction; and (4) denied Noe’s motion to proceed without prepayment of fees on
appeal.
II
“We review the district court’s dismissal of a § 2241 habeas petition de novo.”
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation
marks omitted). Because Noe proceeds pro se, we construe his pleadings liberally.
See id.
III
A federal prisoner may pursue habeas relief under two statutes. The first is
§ 2241. An application under § 2241 “typically attacks the execution of a sentence
rather than its validity and must be filed in the district where the prisoner is
confined.” Brace, 634 F.3d at 1169 (internal quotation marks omitted). The second
avenue of relief is 28 U.S.C. § 2255. “Congress created § 2255 as a separate
remedial vehicle specifically designed for federal prisoners’ collateral attacks on
their sentences.” Jones v. Hendrix, 599 U.S. 465, 473 (2023). “A § 2255 motion is
3 Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 4
ordinarily the only means to challenge the validity of a federal conviction following
the conclusion of direct appeal.” Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016).
“But in rare instances,” the “savings clause in § 2255(e)” permits a prisoner to
attack a conviction through a § 2241 habeas corpus application. Hale, 829 F.3d at
1165 (citation and internal quotation marks omitted). The saving clause provides:
An application for a writ of habeas corpus [pursuant to § 2241] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion [pursuant to § 2255] is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e) (emphasis added). The applicant “bears the burden of showing
he satisfies § 2255(e).” Hale, 829 F.3d at 1170.
In Jones, the Court explained that the circumstances in which the saving clause
applies are narrow and “cover[] unusual circumstances in which it is impossible or
impracticable for a prisoner to seek relief from the sentencing court” in a § 2255
motion. 599 U.S. at 474 (giving examples such as the dissolution of the sentencing
court).
Putting a slightly finer point on the issue, the test for whether a supposed
§ 2241 falls within the saving clause is “whether a petitioner’s argument challenging
the legality of his detention could have been tested in an initial § 2255 motion.”
Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (Gorsuch, J.). “If the answer
is yes, then the petitioner may not resort to the savings clause and § 2241.” Id. This
rule applies regardless of whether the applicant did or did not actually make a § 2255
4 Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 5
motion in the sentencing court, whether any such motion was rightly or wrongly
decided or is now time-barred, or whether the defendant may be barred from bringing
a second or successive § 2255 motion under § 2255(h). See id. at 586.
Here, Noe argues that his criminal history score in the presentence report was
incorrectly recalculated at sentencing and must be corrected. This argument could
have been made in a § 2255 motion, and there is nothing to suggest that it is
impossible or impracticable for Noe to seek relief under § 2255 from the sentencing
court. Indeed, Noe specifically acknowledged that the “sentencing judge knows of
the errors, the case, and has all of the documents and records in the case.” R., vol. I
at 96. Therefore, we affirm the judgment of the district court dismissing the second
claim for relief for lack of subject-matter jurisdiction.
IV
Noe further argues that the district court erred when it denied his motion to
transfer his § 2241 application to the United States District Court for the District of
Minnesota. He maintains that “the court could simply transfer the case to Noe’s
[sentencing] judge who could order briefing as to Noe’s . . . criminal history and if
there are errors to order the [presentence report] corrected and restore Noe’s lost
good time.” Pet’r Reply Br. at 5. But Noe is incarcerated in Colorado, which means
that his § 2241 application had to be filed in the federal district court in Colorado.
See Brace, 634 F.3d at 1169 (holding that a § 2241 application must be filed in the
district where the prisoner is confined). Thus, the court properly denied the motion
to transfer.
5 Appellate Case: 23-1304 Document: 010111031853 Date Filed: 04/15/2024 Page: 6
V
We deny Noe’s motion to proceed without prepayment of costs or fees because
his appeal is legally and factually frivolous. See DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991) (requiring both an inability to pay and “the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues raised
on appeal.”). Consequently, he must immediately pay the full amount of appellate
filing fees and costs.
VI
The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock Circuit Judge