FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court JAMES WILLIAMS,
Petitioner - Appellant,
v. No. 17-1425 (D.C. No. 1:17-CV-02172-LTB) JOE MOOREHEAD, (D. Colo.)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________
James Williams, a federal prisoner in the custody of the Federal Bureau of
Prisons at the United States Penitentiary in Florence, Colorado, challenges the
statutory dismissal of his pro se 28 U.S.C. § 2241 petition. 1 He also moves to proceed
in forma pauperis. Because we agree with the district court that 28 U.S.C. § 2255 is
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Williams is pro se, we construe his pleadings liberally, but we don’t assume an advocacy role on his behalf. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). an adequate and effective remedy for the claims Williams brought in his § 2241
petition, we affirm.
BACKGROUND
In 1996, a jury convicted Williams of armed bank robbery, among other
federal offenses, and a judge sentenced him to 687 months in prison. On direct
appeal, the United States Court of Appeals for the Third Circuit affirmed his
convictions. The United States District Court for the Eastern District of Pennsylvania
then appointed Williams counsel to prepare a motion to vacate his sentence under 28
U.S.C. § 2255. Soon after, Williams “moved to proceed pro se, which the District
Court granted in part by allowing him to submit a list of supplemental issues for
counsel to file by a certain deadline.” R. at 73. The district court denied his request in
part for security reasons, stating,
[W]e find that defendant poses a high security risk and we will not allow him to move freely about the courtroom or have a pen or pencil in open court. . . . Defendant is a member of an extremist group and is presently on trial for murder. He has attacked witnesses in the past, suborned perjury, and otherwise obstructed justice and the proper functioning of the court. He will be permitted to present his pro se issues, but only through counsel.
Id. at 21 n.1. Williams missed the court’s imposed supplemental-filing deadline by a
year, so the district court disallowed him from filing his pro se issues. Then the
district court denied his § 2255 motion and declined to grant a certificate of
appealability. United States v. Williams, 166 F. Supp. 2d 286, 309–310 (E.D. Pa.
2001). The Third Circuit followed suit, “noting that the District Court did not abuse
its discretion in denying Williams a further opportunity to add claims to his § 2255
2 motion.” R. at 73; see also Williams v. United States, 542 F. App’x 97, 98 (3d Cir.
Nov. 21, 2013).
Years later, on September 8, 2017, Williams filed a 28 U.S.C. § 2241 petition
in the United States District Court for the District of Colorado. That petition alleged
that the United States District Court for the Eastern District of Pennsylvania had
erred (1) by violating his Sixth Amendment right to self-representation by
obstructing “his one shot to seek redress or test the legality of his wrongful
detention,” R. at 6; (2) by violating his First Amendment right to access the courts by
“preventing access to 2255 ‘Pro se’ redress” for constitutional violations of Brady v.
Maryland, 373 U.S. 83, 86 (1963), id.; and (3) by violating his Fifth Amendment
right to conduct his own defense, each violation allegedly having occurred as part of
his previous § 2255 proceeding.
A magistrate judge, relying on Prost v. Anderson, 636 F.3d 578, 584 (10th Cir.
2011), issued an order to show cause directing Williams to demonstrate that § 2255
was an inadequate or ineffective remedy for his claims. Williams responded to that
order by reiterating his § 2241 petition’s claims. But he also asserted his “actual
innocence.” R. at 86. And, he contended, because the court ruling on his § 2255
petition had failed to “adjudicate [his] timely filed meritorious Pro Se constitutional
violation issues,” § 2255 failed as a remedy. Id. at 89.
The District Court for the District of Colorado dismissed Williams’s § 2241
petition for lack of statutory jurisdiction under Abernathy v. Wandes, 713 F.3d 538,
549, 557 (10th Cir. 2013), because Williams had failed to show § 2255 was an
3 inadequate or ineffective remedy. The court also denied Williams leave to proceed in
forma pauperis on appeal, finding under “28 U.S.C. § 1915(a)(3) that any appeal
from” its dismissal order “would not be taken in good faith.” R. at 109 (citing
Coppedge v. United States, 369 U.S. 438, 446–47 (1962)). Williams now appeals.
DISCUSSION
We review de novo the district court’s denial of Williams’s § 2241 habeas
petition. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “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 [28 U.S.C.] § 2255.”
Prost, 636 at 580. One exception exists. “[A] federal prisoner may resort to [28
U.S.C.] § 2241 to contest his conviction if . . . the § 2255 remedial mechanism is
‘inadequate or ineffective to test the legality of his detention.’” Id. (quoting 28
U.S.C. § 2255(e)). But if a federal prisoner seeking relief under § 2241 fails to
establish that § 2255 is an inadequate or ineffective remedy, the court lacks statutory
jurisdiction to hear the prisoner’s habeas claims. Abernathy, 713 F.3d at 557.
“A § 2255 petition attacks the legality of detention.” Bradshaw, 86 F.3d at
166. In contrast, a 28 U.S.C. § 2241 petition “attacks the execution of a sentence.” Id.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court JAMES WILLIAMS,
Petitioner - Appellant,
v. No. 17-1425 (D.C. No. 1:17-CV-02172-LTB) JOE MOOREHEAD, (D. Colo.)
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT * _________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. _________________________________
James Williams, a federal prisoner in the custody of the Federal Bureau of
Prisons at the United States Penitentiary in Florence, Colorado, challenges the
statutory dismissal of his pro se 28 U.S.C. § 2241 petition. 1 He also moves to proceed
in forma pauperis. Because we agree with the district court that 28 U.S.C. § 2255 is
* 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 Williams is pro se, we construe his pleadings liberally, but we don’t assume an advocacy role on his behalf. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). an adequate and effective remedy for the claims Williams brought in his § 2241
petition, we affirm.
BACKGROUND
In 1996, a jury convicted Williams of armed bank robbery, among other
federal offenses, and a judge sentenced him to 687 months in prison. On direct
appeal, the United States Court of Appeals for the Third Circuit affirmed his
convictions. The United States District Court for the Eastern District of Pennsylvania
then appointed Williams counsel to prepare a motion to vacate his sentence under 28
U.S.C. § 2255. Soon after, Williams “moved to proceed pro se, which the District
Court granted in part by allowing him to submit a list of supplemental issues for
counsel to file by a certain deadline.” R. at 73. The district court denied his request in
part for security reasons, stating,
[W]e find that defendant poses a high security risk and we will not allow him to move freely about the courtroom or have a pen or pencil in open court. . . . Defendant is a member of an extremist group and is presently on trial for murder. He has attacked witnesses in the past, suborned perjury, and otherwise obstructed justice and the proper functioning of the court. He will be permitted to present his pro se issues, but only through counsel.
Id. at 21 n.1. Williams missed the court’s imposed supplemental-filing deadline by a
year, so the district court disallowed him from filing his pro se issues. Then the
district court denied his § 2255 motion and declined to grant a certificate of
appealability. United States v. Williams, 166 F. Supp. 2d 286, 309–310 (E.D. Pa.
2001). The Third Circuit followed suit, “noting that the District Court did not abuse
its discretion in denying Williams a further opportunity to add claims to his § 2255
2 motion.” R. at 73; see also Williams v. United States, 542 F. App’x 97, 98 (3d Cir.
Nov. 21, 2013).
Years later, on September 8, 2017, Williams filed a 28 U.S.C. § 2241 petition
in the United States District Court for the District of Colorado. That petition alleged
that the United States District Court for the Eastern District of Pennsylvania had
erred (1) by violating his Sixth Amendment right to self-representation by
obstructing “his one shot to seek redress or test the legality of his wrongful
detention,” R. at 6; (2) by violating his First Amendment right to access the courts by
“preventing access to 2255 ‘Pro se’ redress” for constitutional violations of Brady v.
Maryland, 373 U.S. 83, 86 (1963), id.; and (3) by violating his Fifth Amendment
right to conduct his own defense, each violation allegedly having occurred as part of
his previous § 2255 proceeding.
A magistrate judge, relying on Prost v. Anderson, 636 F.3d 578, 584 (10th Cir.
2011), issued an order to show cause directing Williams to demonstrate that § 2255
was an inadequate or ineffective remedy for his claims. Williams responded to that
order by reiterating his § 2241 petition’s claims. But he also asserted his “actual
innocence.” R. at 86. And, he contended, because the court ruling on his § 2255
petition had failed to “adjudicate [his] timely filed meritorious Pro Se constitutional
violation issues,” § 2255 failed as a remedy. Id. at 89.
The District Court for the District of Colorado dismissed Williams’s § 2241
petition for lack of statutory jurisdiction under Abernathy v. Wandes, 713 F.3d 538,
549, 557 (10th Cir. 2013), because Williams had failed to show § 2255 was an
3 inadequate or ineffective remedy. The court also denied Williams leave to proceed in
forma pauperis on appeal, finding under “28 U.S.C. § 1915(a)(3) that any appeal
from” its dismissal order “would not be taken in good faith.” R. at 109 (citing
Coppedge v. United States, 369 U.S. 438, 446–47 (1962)). Williams now appeals.
DISCUSSION
We review de novo the district court’s denial of Williams’s § 2241 habeas
petition. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “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 [28 U.S.C.] § 2255.”
Prost, 636 at 580. One exception exists. “[A] federal prisoner may resort to [28
U.S.C.] § 2241 to contest his conviction if . . . the § 2255 remedial mechanism is
‘inadequate or ineffective to test the legality of his detention.’” Id. (quoting 28
U.S.C. § 2255(e)). But if a federal prisoner seeking relief under § 2241 fails to
establish that § 2255 is an inadequate or ineffective remedy, the court lacks statutory
jurisdiction to hear the prisoner’s habeas claims. Abernathy, 713 F.3d at 557.
“A § 2255 petition attacks the legality of detention.” Bradshaw, 86 F.3d at
166. In contrast, a 28 U.S.C. § 2241 petition “attacks the execution of a sentence.” Id.
Section 2241 “is not an additional, alternative, or supplemental remedy to” § 2255.
Id. To seek redress under § 2241, a prisoner’s opportunity to pursue his claims under
§ 2255 must be “genuinely absent.” Prost, 636 F.3d at 588. And such an opportunity
is genuinely absent where a petitioner’s argument couldn’t have been tested in an
initial § 2255 motion. See id. at 584.
4 Here, Williams contends that by denying his motion to proceed pro se with his
§ 2255 petition, the Eastern District of Pennsylvania (1) kept him from making his
chosen arguments in his initial § 2255 petition, which, as a practical matter, (2) also
keeps him from filing a second or successive § 2255 petition to raise those
arguments. But nothing suggests that Williams couldn’t have made the same
arguments now made as part of his initial § 2255 petition in the Eastern District of
Pennsylvania. So the initial § 2255 petition wasn’t an inadequate or ineffective
remedy for his present grievances. See Williams v. United States, 323 F.2d 672, 673
(10th Cir. 1963) (determining that just because a petitioner’s first § 2255 petition was
unsuccessful doesn’t mean § 2255 is an inadequate or ineffective remedy). And even
if Williams is barred from raising his claims in a second or successive motion
pursuant to § 2255, the remedy provided in § 2255 still isn’t inadequate or
ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).
Like the district court, we also conclude that Williams’s appeal is frivolous.
His motion to proceed in forma pauperis is denied. McIntosh v. U.S. Parole Comm’n,
115 F.3d 809, 812–13 (10th Cir. 1997).
CONCLUSION
For the above reasons, we AFFIRM the district court’s dismissal of Williams’s
5 petition for lack of statutory jurisdiction and DENY Williams’s motion to proceed in
forma pauperis.
Entered for the Court
Gregory A. Phillips Circuit Judge