United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK,
Senior District Judge.
Applicant, Marcus Robert Williams, is in the custody of the United
States Bureau of Prisons at the United States Penitentiary in Florence,
Colorado. Applicant, initiated this action by filing pro se a 28 U.S.C.
§ 2241 application that challenges the validity of his conviction and sentence
in United States v. Williams, No. 07-cr-00259-FL (E.D. N.C. Nov. 4,
2008). On February 18, 2014, Magistrate Judge Boyd N. Boland entered an Order to
Show Cause directing Applicant to respond and show cause why the Application
should not be denied because Applicant has an adequate and effective remedy in
the sentencing court. Applicant responded to the Order to Show Cause on March
20, 2014. See ECF Nos. 8, 9, and10.
The Court must construe liberally the Application and other pleadings
filed by Applicant pursuant to the Order to Show Cause because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court cannot act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the action will be dismissed.
Applicant pled guilty to Interfering with Commerce by Robbing and
Aiding and Abetting (Hobbs Act) pursuant to 18 U.S.C. §§ 1951 and 2 and to
Brandishing a Firearm During a Crime of Violence and Aiding and Abetting
pursuant to 18 U.S.C. §§ 924(c) and 2. He was sentenced on November 4, 2008, to
a total of 262 months of incarceration and five years of supervised release.
Williams, No. 07-cv-00259-FL at ECF No. 50. Applicant filed a notice of
appeal on November 13, 2008. Id. at eCF No. 62. The appeal was dismissed
by the Fourth Circuit because Applicant had waived his right to appeal in his
plea agreement. See United States v. Williams, No. 08-5134 (4th Cir.
July 17, 2009). Applicant petitioned the United States Supreme Court for
certiorari review, which was denied on November 16, 2009. See Williams v.
United States, No. 09-7101 (Nov. 16, 2009).
Applicant then filed two 28 U.S.C. § 2555 motions: the first motion on
September 7, 2010, and the second on May 15, 2013. In the first motion,
Applicant raised claims including (1) ineffective assistance of counsel for
failing to investigate his criminal history before entering a plea agreement;
(2) actual innocence because he does not qualify as a career offender; and (3)
the sentence for count two does not apply to him because he cannot be imprisoned
under § 924(c)(1) if he also is found to be an armed career criminal act
defendant under § 924(e)(1). United States v. Williams, No.
10-cv-00362-(07-cr-00259-FL), ECF Nos. 73 and 74 (E.D. N.C. Filed Sept. 7,
2010). The motion was denied on March 29, 2011, see ECF No. 83 and 84,
and the Fourth Circuit dismissed Applicant's appeal as untimely, see United
States v. Williams, No. 12-7041 (4th Cir. Aug. 16, 2012) (petition for
rehearing was denied).
In the second motion, Applicant argued that he is not a career
offender in light of United States v. Simmons, 649 F.3d 237 (4th Cir.
2011), and that he has met the requirements necessary to obtain relief under §
2255. Williams, No. 07-cr-00259-FL at ECF No. 99. The Eastern District
of North Carolina denied the motion on May 16, 2013, without prejudice and
directed Applicant to obtain authorization to file a successive § 2255 from the
Fourth Circuit. See Williams, No. 07-cr-00259-FL at ECF No. 101.
Applicant filed a motion for authorization with the Fourth Circuit that was
denied on July 15, 2013. See In re: Marcus Robert Williams, No. 13-276
(July 15, 2013).
Applicant raises two claims in this Application: (1) he is not in fact
a career criminal; and (2) the findings in Simmons and Alleyne
should be applied retroactively to his sentence because his sentence in count
two, eighty-four months, is cruel and unusual punishment.
First, Applicant may not rely on Alleyne for relief in this
action. The Tenth Circuit Court of Appeals most recently held that Alleyne
was decided on direct review, is an extension of Apprendi, and other
rules based on Apprendi do not apply retroactively on collateral review.
See In re: James Edward Payne, 733 F.3d 1027, 1030 (10th Cir. 2013).
Furthermore, "[a] federal prisoner may file a § 2241 application to
challenge the legality of his conviction under the limited circumstances
provided in the so-called savings clause of § 2255." "Pursuant to this savings
clause, a § 2241 petition may be appropriate if the remedy by [§ 2255] motion is
inadequate or ineffective to test the legality of [an applicant's] detention."
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (citing 28
U.S.C. § 2255(e); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996)). The narrow reading of the savings clause is well established in the
Tenth Circuit. See Prost v. Anderson, 636 F.3d 578, 588 (10th
Cir. 2011). Rarely is a remedy inadequate or ineffective to challenge a
conviction in a § 2255 motion. Brace, at 1169 (citing Sines v.
Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010) (erroneous decision on a §
2255 does not necessarily render the § 2255 remedy inadequate or ineffective));
see also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999)
(The remedy available pursuant to § 2255 is inadequate or ineffective only in
"extremely limited circumstances.").
The remedy available pursuant to § 2255 may be inadequate or
ineffective if the sentencing court has been abolished, refuses to consider the
§ 2255 motion, inordinately delays consideration of the § 2255 motion, or is
unable to grant complete relief. See Caravalho, 177 F.3d at
1178. Applicant does not assert any of these circumstances.
Another circumstance where the remedy in a § 2255 motion may be
inadequate or ineffective is where the gate-keeping language of § 2255 bars
retroactive application of a Supreme Court case that does not state a new rule
of constitutional law but demonstrates an applicant is actually innocent.
United States v. Apodaca, 90 F.Appx. 300, 303 n.8 (10th Cir. Jan. 30,
2004) (unpublished) (citing Reyes-Requena v. United States, 243 F.3d
893, 902 n.20 (5th Cir. 2001) (allowing a habeas corpus application pursuant to
§ 2241 on a showing of actual innocence)). The Tenth Circuit, however, has
explicitly declined to adopt the Reyes-Requena test. See
Prost, 636 F.3d at 593-94. Furthermore, both the erroneous circuit
foreclosure test, see In re Davenport, 147 F.3d 605, 610 (7th
Cir. 1998), and a novel argument for relief, are rejected by the Tenth Circuit
as a way to invoke the savings clause and proceed to § 2241. Prost,
636 F.3d at 593-94.
Finally, Applicant bears the burden of demonstrating that the remedy
in § 2255 is inadequate or ineffective. Id. at 584. "[A] prisoner can
proceed to § 2241 only if his initial § 2255 motion was itself
inadequate or ineffective to the task of providing the [applicant] with a
chance to test his sentence or conviction." Prost, 636
F.3d at 587. Neither the sentencing court's denial of Applicant' § 2255 motion
on the merits, nor the circuit court's denial of authorization of a successive §
2255 motion, demonstrates that the remedy provided in § 2255 is inadequate or
ineffective. See Carter v. Attorney General, 782 F.2d 138,
141 (10th Cir. 1986) ("[c]ollateral attacks upon criminal convictions, no matter
how they are characterized by a litigant, are properly governed by the same
considerations which underlie habeas corpus proceedings."). "Failure to obtain
relief under § 2255 does not establish that the remedy so provided
is either inadequate or ineffective." See Bradshaw, 86 F.3d
at 166 (quoting Williams v. United States, 323 F.2d 672, 673 (10th
Because Applicant fails to demonstrate the remedy available to him in
the sentencing court or the circuit court, pursuant to 28 U.S.C. § 2255, is
inadequate or ineffective, the Application will be dismissed for lack of
statutory jurisdiction. See Abernathy v. Wandes, 713 F.3d
538, 557 (10th Cir. 2013).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order is not taken in good faith, and, therefore, in forma
pauperis status is denied for the purpose of appeal. See
Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a
notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma ...