FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KELVIN ANDRE SPOTTS,
Petitioner - Appellant,
v. No. 19-1122 (D.C. No. 1:18-CV-03364-LTB) M.A. STANCIL, USP Warden, (D. Colorado)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, KELLY, and MORITZ, Circuit Judges. _________________________________
Petitioner, Kelvin Andre Spotts, a federal prisoner proceeding pro se,1 appeals
the district court’s dismissal of his application for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241, the denial of his Motion to Transfer Venue, and the denial of his
Motion to Reconsider. He also moves to proceed in forma pauperis on appeal.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Mr. Spotts is proceeding without counsel, we construe his filings liberally, but we will not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We exercise jurisdiction under 28 U.S.C. § 1291, and we affirm the judgment
of the district court in full. We also deny Mr. Spotts’s motion to proceed in forma
pauperis before this court.
BACKGROUND
On September 18, 1998, Mr. Spotts pleaded guilty in the United States District
Court for the Southern District of West Virginia to three counts “arising out of a
conspiracy to distribute marijuana, cocaine and cocaine base from September of 1993
to March of 1998.” Dist. Ct. Order at 4. He was sentenced to life imprisonment.
Almost immediately, Mr. Spotts sought collateral relief.
On February 25, 1999, Mr. Spotts filed his first motion under 28 U.S.C. § 2255
in the Southern District of West Virginia, but the district court dismissed this motion
without prejudice because Mr. Spotts’s direct appeal had not yet been resolved. After
losing his direct appeal, Mr. Spotts renewed his § 2255 motion on July 26, 2000. The
district court then denied the motion on the merits, and the United States Court of
Appeals for the Fourth Circuit affirmed.
On February 15, 2005, Mr. Spotts filed a successive § 2255 motion. Because
he had failed to obtain authorization from the Fourth Circuit to file a successive
motion, the district court dismissed it, and the Fourth Circuit affirmed the dismissal.
Id.; see also 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.”).
2 Approximately one year later, Mr. Spotts filed another unsuccessful § 2255
motion. Not to be deterred, Mr. Spotts filed additional successive motions on May
14, 2017, and July 7, 2011. Again, Mr. Spotts failed to obtain authorization to file the
successive motions, and the district court dismissed both.
On February 8, 2012, Mr. Spotts tried a slightly different approach, filing a
motion for sentence reduction pursuant to 18 U.S.C. § 3582 and/or a § 2255 motion
to have his sentence vacated. This time, Mr. Spotts sought authorization from the
Fourth Circuit to file his successive § 2255 motion, but his request was denied. The
district court also denied his motion under § 3582.
Mr. Spotts next tried to combine a successive § 2255 motion with a § 2241
petition in the United States Court of Appeals for the Fifth Circuit, where Mr. Spotts
was incarcerated at the time. Concluding that Mr. Spotts’s request for relief did not
fall within § 2241 and that he had failed to obtain authorization to file a successive
motion under § 2255, the Fifth Circuit denied relief. Spotts v. Lara, 728 F. App’x
409, 410 (5th Cir. 2018) (unpublished) (“Because Spotts challenges the legality of his
sentence, rather than the manner in which it is being executed, his claim is properly
construed as arising under § 2255.”).
After being transferred to the federal prison in Florence, Colorado, Mr. Spotts
brought the present action in the United States District Court for the District of
Colorado. Mr. Spotts again sought relief under § 2241 and he also requested a
transfer of venue. After the district court denied both motions, Mr. Spotts brought a
Motion to Reconsider, which the district court also denied.
3 Mr. Spotts now appeals.
DISCUSSION
The district court dismissed Mr. Spotts’s application for a writ of habeas
corpus under § 2241 because Mr. Spotts attacks the validity of his federal sentence,
not the manner in which it is being executed, and because Mr. Spotts has not
established that his remedy under § 2255 is ineffective or inadequate. The district
court is correct.
In general, a petition filed under 28 U.S.C. § 2241 may be used to challenge
the execution of a sentence, not its validity. See Haugh v. Booker, 210 F.3d 1147,
1149 (10th Cir. 2000). A challenge under § 2241 must be filed in the district where
the petitioner is confined. Id. In contrast, a motion that attacks the validity of a
federal sentence must be filed under 28 U.S.C. § 2255 in the district court that
imposed the sentence. Id. Only if the remedy provided by § 2255 is inadequate or
ineffective can a petitioner attack the validity of his sentence under § 2241. See
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
Here, Mr. Spotts challenges the validity of his federal sentence and, as the
district court correctly concluded, he has not established that § 2255 is inadequate or
ineffective. “Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or
ineffective only in extremely limited circumstances.” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999). That Mr. Spotts’s previous attempts to obtain relief
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KELVIN ANDRE SPOTTS,
Petitioner - Appellant,
v. No. 19-1122 (D.C. No. 1:18-CV-03364-LTB) M.A. STANCIL, USP Warden, (D. Colorado)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before McHUGH, KELLY, and MORITZ, Circuit Judges. _________________________________
Petitioner, Kelvin Andre Spotts, a federal prisoner proceeding pro se,1 appeals
the district court’s dismissal of his application for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241, the denial of his Motion to Transfer Venue, and the denial of his
Motion to Reconsider. He also moves to proceed in forma pauperis on appeal.
* 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. 1 Because Mr. Spotts is proceeding without counsel, we construe his filings liberally, but we will not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We exercise jurisdiction under 28 U.S.C. § 1291, and we affirm the judgment
of the district court in full. We also deny Mr. Spotts’s motion to proceed in forma
pauperis before this court.
BACKGROUND
On September 18, 1998, Mr. Spotts pleaded guilty in the United States District
Court for the Southern District of West Virginia to three counts “arising out of a
conspiracy to distribute marijuana, cocaine and cocaine base from September of 1993
to March of 1998.” Dist. Ct. Order at 4. He was sentenced to life imprisonment.
Almost immediately, Mr. Spotts sought collateral relief.
On February 25, 1999, Mr. Spotts filed his first motion under 28 U.S.C. § 2255
in the Southern District of West Virginia, but the district court dismissed this motion
without prejudice because Mr. Spotts’s direct appeal had not yet been resolved. After
losing his direct appeal, Mr. Spotts renewed his § 2255 motion on July 26, 2000. The
district court then denied the motion on the merits, and the United States Court of
Appeals for the Fourth Circuit affirmed.
On February 15, 2005, Mr. Spotts filed a successive § 2255 motion. Because
he had failed to obtain authorization from the Fourth Circuit to file a successive
motion, the district court dismissed it, and the Fourth Circuit affirmed the dismissal.
Id.; see also 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.”).
2 Approximately one year later, Mr. Spotts filed another unsuccessful § 2255
motion. Not to be deterred, Mr. Spotts filed additional successive motions on May
14, 2017, and July 7, 2011. Again, Mr. Spotts failed to obtain authorization to file the
successive motions, and the district court dismissed both.
On February 8, 2012, Mr. Spotts tried a slightly different approach, filing a
motion for sentence reduction pursuant to 18 U.S.C. § 3582 and/or a § 2255 motion
to have his sentence vacated. This time, Mr. Spotts sought authorization from the
Fourth Circuit to file his successive § 2255 motion, but his request was denied. The
district court also denied his motion under § 3582.
Mr. Spotts next tried to combine a successive § 2255 motion with a § 2241
petition in the United States Court of Appeals for the Fifth Circuit, where Mr. Spotts
was incarcerated at the time. Concluding that Mr. Spotts’s request for relief did not
fall within § 2241 and that he had failed to obtain authorization to file a successive
motion under § 2255, the Fifth Circuit denied relief. Spotts v. Lara, 728 F. App’x
409, 410 (5th Cir. 2018) (unpublished) (“Because Spotts challenges the legality of his
sentence, rather than the manner in which it is being executed, his claim is properly
construed as arising under § 2255.”).
After being transferred to the federal prison in Florence, Colorado, Mr. Spotts
brought the present action in the United States District Court for the District of
Colorado. Mr. Spotts again sought relief under § 2241 and he also requested a
transfer of venue. After the district court denied both motions, Mr. Spotts brought a
Motion to Reconsider, which the district court also denied.
3 Mr. Spotts now appeals.
DISCUSSION
The district court dismissed Mr. Spotts’s application for a writ of habeas
corpus under § 2241 because Mr. Spotts attacks the validity of his federal sentence,
not the manner in which it is being executed, and because Mr. Spotts has not
established that his remedy under § 2255 is ineffective or inadequate. The district
court is correct.
In general, a petition filed under 28 U.S.C. § 2241 may be used to challenge
the execution of a sentence, not its validity. See Haugh v. Booker, 210 F.3d 1147,
1149 (10th Cir. 2000). A challenge under § 2241 must be filed in the district where
the petitioner is confined. Id. In contrast, a motion that attacks the validity of a
federal sentence must be filed under 28 U.S.C. § 2255 in the district court that
imposed the sentence. Id. Only if the remedy provided by § 2255 is inadequate or
ineffective can a petitioner attack the validity of his sentence under § 2241. See
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
Here, Mr. Spotts challenges the validity of his federal sentence and, as the
district court correctly concluded, he has not established that § 2255 is inadequate or
ineffective. “Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or
ineffective only in extremely limited circumstances.” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999). That Mr. Spotts’s previous attempts to obtain relief
under § 2255 have been unsuccessful and that he may be barred from filing a
successive § 2255 motion do not establish that the remedy is ineffective or
4 inadequate. See, e.g., Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir. 2013);
Caravalho, 177 F.3d at 1178.
Accordingly, the district court correctly dismissed Mr. Spotts’s petition. It also
acted within its discretion in dismissing the action without prejudice rather than
transferring venue. And because Mr. Spotts failed to raise any valid issues in the
motion for reconsideration, the district court acted within its discretion in denying
that motion.
CONCLUSION
For substantially the same reasons as stated by the district court, we AFFIRM
the dismissal of Mr. Spotts’s motion under 28 U.S.C. § 2241, the denial of his
Motion to Transfer Venue, and the denial of his Motion to Reconsider.2
Entered for the Court
Carolyn B. McHugh Circuit Judge
2 We also deny Mr. Spotts’s Motion for Leave to Proceed In Forma Pauperis because he has not advanced “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation marks omitted). 5