FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 18, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KEITH BRYAN WEBB-EL,
Petitioner - Appellant,
v. No. 19-1326 (D.C. No. 1:19-CV-00774-LTB-GPG UNITED STATES PAROLE (D. Colo.) COMMISSION,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________
Petitioner Keith Webb-El, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. §
2241 and seeks leave to proceed in forma pauperis.1 We affirm the dismissal of his
petition and deny his motion to proceed in forma pauperis.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Webb-El is a federal prisoner proceeding under § 2241, a certificate of appealability is not a prerequisite to his appeal. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). I
In 1985, Mr. Webb-El was convicted in the United States District Court for the
Western District of Texas of one count of murder and two counts of injury to a child.
He was sentenced to life imprisonment. Since his conviction, Mr. Webb-El has filed
at least six unsuccessful motions pursuant to 28 U.S.C. § 2255 in the Western District
of Texas in addition to numerous unsuccessful § 2241 petitions in other federal
district courts.
Mr. Webb-El filed the instant § 2241 petition on March 15, 2019. The
magistrate judge ordered Mr. Webb-El to show cause why the action should not be
dismissed because he has an adequate and effective remedy available to him in the
sentencing court pursuant to § 2255. Mr. Webb-El did not respond to the court’s
show cause order. The magistrate judge found that Mr. Webb-El failed to
demonstrate that the remedy available in the sentencing court pursuant to § 2255 was
inadequate or ineffective. Accordingly, the magistrate judge recommended Mr.
Webb-El’s § 2241 petition be denied and the action be dismissed for a lack of
statutory jurisdiction.
The magistrate judge advised Mr. Webb-El that his failure to file objections to
the recommendation may result in him losing his right to appeal the magistrate
judge’s factual findings. Despite this warning, Mr. Webb-El did not file objections
or otherwise respond to the magistrate judge’s recommendation. The district court
adopted the recommendation in full and dismissed Mr. Webb-El’s petition. Mr.
Webb-El timely appealed.
2 II
On appeal, this court directed Mr. Webb-El to address the issue of whether he
waived appellate review by failing to file objections to the magistrate judge’s
recommendation. Mr. Webb-El responded that he never received the magistrate
judge’s recommendation and therefore did not know to file objections.
Thus, before we may proceed to the merits of Mr. Webb-El’s appeal, we must first
address the threshold issue of whether Mr. Webb-El has waived his right to appeal by
failing to object to the magistrate judge’s recommendation.
In Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991), this circuit
noted that “we have adopted a firm waiver rule when a party fails to object to the
findings and recommendations of the magistrate.” That rule “provides that the
failure to make timely objection to the magistrate’s findings or recommendations
waives appellate review of both factual and legal questions.” Id. However, waiver
only applies if a litigant was “properly informed of the consequences of his failure to
object.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).
In Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996), we concluded that
waiver was “not appropriate” where the magistrate judge’s recommendation informed
the petitioner that his “failure to file written objections may bar him from appealing
the factual findings of the magistrate judge” but did not warn him “that a failure to
object waives appellate review of legal questions as well.” Similarly here, the
magistrate judge only informed Mr. Webb-El that his failure to file objections “may
bar [him] from appealing the factual findings of the Magistrate Judge that are
3 accepted or adopted by the District Court.” ROA at 45 (emphasis added). The
magistrate judge recommended dismissal of Mr. Webb-El’s petition due to a lack of
statutory jurisdiction. Because Mr. Webb-El was not informed that his failure to
object would bar review of this legal issue, our waiver rule is inapplicable. See
Talley, 91 F.3d at 1413. We now turn to the merits of Mr. Webb-El’s appeal.
III
We review de novo the district court's dismissal of a § 2241 petition. Broomes
v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). Mr. Webb-El’s instant § 2241
petition challenges the validity of his federal sentence and conviction. Mr. Webb-
El’s petition alleges that his indictment was defective—an argument he has set forth
in several other habeas petitions. See, e.g., Webb v. Warden Allenwood USP, 735 F.
App’x 42, 42 (3d Cir. 2018) (“At issue here is another § 2241 petition that Webb
filed within this Circuit and in which he again claimed that he is innocent because his
1985 superseding indictment was deficient.”). Specifically, Mr. Webb-El’s petition
asserts:
The parole Commission is acting in violations of the Const. and Laws of the U.S. holding the petitioner, indinite [sic] for a non-existing capital offense of second degree murder, he was not charged by a federal Grand Jury in Count One of the Government July 16, 1985 indictment. In violation of his 5th Amend. Const. Rights, and Human Rights . . . . The U.S. Parole Commission . . . [i]s unlawfully confining the petitioner, against his will, in voluntary servitude in federal custody, unconstitutionally holding the petitioner, to answer for a non-existing capital offense of second degree murder. That the petitioner Webb-El, was not charged by a Federal Grand Jury on
4 Count One of the U.S. Government July 16, 1985 superseding indictment.
ROA at 5.
“A petition under 28 U.S.C.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 18, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court KEITH BRYAN WEBB-EL,
Petitioner - Appellant,
v. No. 19-1326 (D.C. No. 1:19-CV-00774-LTB-GPG UNITED STATES PAROLE (D. Colo.) COMMISSION,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________
Petitioner Keith Webb-El, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. §
2241 and seeks leave to proceed in forma pauperis.1 We affirm the dismissal of his
petition and deny his motion to proceed in forma pauperis.
* 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. Webb-El is a federal prisoner proceeding under § 2241, a certificate of appealability is not a prerequisite to his appeal. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). I
In 1985, Mr. Webb-El was convicted in the United States District Court for the
Western District of Texas of one count of murder and two counts of injury to a child.
He was sentenced to life imprisonment. Since his conviction, Mr. Webb-El has filed
at least six unsuccessful motions pursuant to 28 U.S.C. § 2255 in the Western District
of Texas in addition to numerous unsuccessful § 2241 petitions in other federal
district courts.
Mr. Webb-El filed the instant § 2241 petition on March 15, 2019. The
magistrate judge ordered Mr. Webb-El to show cause why the action should not be
dismissed because he has an adequate and effective remedy available to him in the
sentencing court pursuant to § 2255. Mr. Webb-El did not respond to the court’s
show cause order. The magistrate judge found that Mr. Webb-El failed to
demonstrate that the remedy available in the sentencing court pursuant to § 2255 was
inadequate or ineffective. Accordingly, the magistrate judge recommended Mr.
Webb-El’s § 2241 petition be denied and the action be dismissed for a lack of
statutory jurisdiction.
The magistrate judge advised Mr. Webb-El that his failure to file objections to
the recommendation may result in him losing his right to appeal the magistrate
judge’s factual findings. Despite this warning, Mr. Webb-El did not file objections
or otherwise respond to the magistrate judge’s recommendation. The district court
adopted the recommendation in full and dismissed Mr. Webb-El’s petition. Mr.
Webb-El timely appealed.
2 II
On appeal, this court directed Mr. Webb-El to address the issue of whether he
waived appellate review by failing to file objections to the magistrate judge’s
recommendation. Mr. Webb-El responded that he never received the magistrate
judge’s recommendation and therefore did not know to file objections.
Thus, before we may proceed to the merits of Mr. Webb-El’s appeal, we must first
address the threshold issue of whether Mr. Webb-El has waived his right to appeal by
failing to object to the magistrate judge’s recommendation.
In Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991), this circuit
noted that “we have adopted a firm waiver rule when a party fails to object to the
findings and recommendations of the magistrate.” That rule “provides that the
failure to make timely objection to the magistrate’s findings or recommendations
waives appellate review of both factual and legal questions.” Id. However, waiver
only applies if a litigant was “properly informed of the consequences of his failure to
object.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).
In Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996), we concluded that
waiver was “not appropriate” where the magistrate judge’s recommendation informed
the petitioner that his “failure to file written objections may bar him from appealing
the factual findings of the magistrate judge” but did not warn him “that a failure to
object waives appellate review of legal questions as well.” Similarly here, the
magistrate judge only informed Mr. Webb-El that his failure to file objections “may
bar [him] from appealing the factual findings of the Magistrate Judge that are
3 accepted or adopted by the District Court.” ROA at 45 (emphasis added). The
magistrate judge recommended dismissal of Mr. Webb-El’s petition due to a lack of
statutory jurisdiction. Because Mr. Webb-El was not informed that his failure to
object would bar review of this legal issue, our waiver rule is inapplicable. See
Talley, 91 F.3d at 1413. We now turn to the merits of Mr. Webb-El’s appeal.
III
We review de novo the district court's dismissal of a § 2241 petition. Broomes
v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). Mr. Webb-El’s instant § 2241
petition challenges the validity of his federal sentence and conviction. Mr. Webb-
El’s petition alleges that his indictment was defective—an argument he has set forth
in several other habeas petitions. See, e.g., Webb v. Warden Allenwood USP, 735 F.
App’x 42, 42 (3d Cir. 2018) (“At issue here is another § 2241 petition that Webb
filed within this Circuit and in which he again claimed that he is innocent because his
1985 superseding indictment was deficient.”). Specifically, Mr. Webb-El’s petition
asserts:
The parole Commission is acting in violations of the Const. and Laws of the U.S. holding the petitioner, indinite [sic] for a non-existing capital offense of second degree murder, he was not charged by a federal Grand Jury in Count One of the Government July 16, 1985 indictment. In violation of his 5th Amend. Const. Rights, and Human Rights . . . . The U.S. Parole Commission . . . [i]s unlawfully confining the petitioner, against his will, in voluntary servitude in federal custody, unconstitutionally holding the petitioner, to answer for a non-existing capital offense of second degree murder. That the petitioner Webb-El, was not charged by a Federal Grand Jury on
4 Count One of the U.S. Government July 16, 1985 superseding indictment.
ROA at 5.
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather
than its validity” while “[a] 28 U.S.C. § 2255 petition attacks the legality of
detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Importantly, a
habeas corpus petition pursuant to § 2241 “is not an additional, alternative, or
supplemental remedy, to the relief afforded by motion in the sentencing court under
§ 2255.” Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam).
Instead, “[t]he exclusive remedy for testing the validity of a judgment and sentence,
unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”
Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965). It is “the prisoner’s burden”
to demonstrate that the remedy available pursuant to § 2255 is ineffective or
inadequate so that the prisoner can resort to § 2255(e)’s savings clause. Prost v.
Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (emphasis added) (holding that the
relevant metric is “whether a petitioner’s argument challenging the legality of his
detention could have been tested in an initial § 2255 motion”). If § 2255(e)’s savings
clause applies, it permits “a federal prisoner to resort to § 2241 to challenge the
legality of his detention, not just the conditions of his confinement.” Id.
Mr. Webb-El, however, did not attempt to demonstrate to the district court that
the remedy available in the sentencing court pursuant to § 2255 is inadequate or
ineffective. Mr. Webb-El failed to respond to a show cause order asking him to
5 demonstrate why § 2255 does not provide an adequate and effective remedy. Mr.
Webb-El has also failed to make any such showing to this court. Because Mr. Webb-
El has not demonstrated (or even argued) that the remedy available pursuant to
§ 2255 is inadequate or ineffective, he cannot resort to the savings clause and § 2241.
Accordingly, Mr. Webb-El’s § 2241 petition was properly dismissed.2
Mr. Webb-El has also filed a motion to proceed in forma pauperis. Because
Mr. Webb-El has not provided a “reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal,” his motion is denied. McIntosh, 115
F.3d at 813 (quotation omitted).
IV
For the foregoing reasons, we AFFIRM the district court’s dismissal of Mr.
Webb-El’s petition and DENY his motion to proceed in forma pauperis.
Entered for the Court
Mary Beck Briscoe Circuit Judge
2 We note that Mr. Webb-El has raised several frivolous arguments on appeal that are unrelated to the magistrate judge’s analysis of the propriety of his § 2241 petition. Mr. Webb-El contends, without pointing to any evidence in the record, that the district court’s dismissal of his § 2241 petition was inconsistent with due process because he was not afforded a fair “adjudication process before a neutral Article III [j]udge.” Aplt.’s Br. at 7. He also argues that Congress has not suspended the writ of habeas corpus—an accurate, but irrelevant, assertion. Last, he contends—contrary to our precedent and without support—that the savings clause is unconstitutional. These arguments are wholly without merit. 6