United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Clifford Marcus Winkles, is in the custody of the Federal Bureau of Prisons in Coleman, Florida. On March 25, 2015, Applicant filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) that challenges the constitutionality of 28 U.S.C. § 2255(e) and (h) and also the validity of his conviction and sentence in United States v. Winkles, No. 00-cr-00359-DDP-2 in the United States District Court for the Central District of California. At the time he filed his § 2241 application, Mr. Winkles was incarcerated at the United States Penitentiary, Florence High, in Florence, Colorado.
On March 25, 2015, Magistrate Judge Gordon P. Gallagher entered an Order for Applicant to Cure deficiencies by either filing a 28 U.S.C. § 1915 Motion and Affidavit or paying the $5.00 filing fee. (ECF No. 3). On April 16, 2015, Applicant cured the deficiency by paying the filing fee. (ECF No. 4). On April 24, 2015, Applicant filed a memorandum of law in support of his habeas application (ECF No. 6).
I. Pro Se Litigant
The Court must construe liberally Applicant's filings 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 without prejudice.
This case has an extensive history. In March 2000, Applicant was charged as the lookout/getaway driver in two bank robberies. He was convicted in the Central District of California of conspiracy in violation of 18 U.S.C. § 371; two counts of armed bank robbery in violation of 18 U.S.C. § 2113(a)(d); brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and witness tampering in violation of 18 U.S.C. § 1512(b)(1). See United States v. Winkles, No. 00-cr-00359-DDP-2 (C.D. Cal.), ECF No. 140. He was sentenced to a total of 476 months of incarceration and to five years of supervised release. Id. On October 1, 2001, Applicant filed a notice of appeal. Id., ECF No. 142. The Ninth Circuit affirmed the judgment of conviction on February 13, 2003. See United States v. Winkles, No. 01-50588 (9th Cir. Oct.), ECF No. 33.
On May 19, 2004, Applicant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 asserting six grounds for relief based on ineffective assistance of counsel prior to trial, during trial, and during his appeal. See United States v. Winkles, No. 00-cr-00359-DDP-2 (C.D. Cal.), ECF Nos. 183, 206. According to Applicant, he filed an amended habeas petition in August 2005 after he received his trial transcripts. However, the district court either did not receive the amended habeas application or failed to file it and, on November 18, 2005, the sentencing court denied the original § 2255 motion. Id., ECF No. 200. Applicant then submitted a letter asking permission to respond to the sentencing court's denial of his § 2255 motion, which the sentencing court construed as a motion for reconsideration. Id., ECF Nos. 201-203. On March 18, 2008, the sentencing court denied the motion for reconsideration finding that Applicant did not present any reason for the court to reconsider its prior ruling and rejecting Applicant's argument that he was unable to argue all the merits of his claims because he did not have his criminal trial transcripts when he filed his original § 2255 motion in May 2004. Id., ECF No. 206.
On May 6, 2008, Applicant filed a motion for relief from an order pursuant to Fed.R.Civ.P. 60(b), which the sentencing court construed as a second motion for reconsideration. Id., ECF Nos. 208-209. In denying the motion, the sentencing court rejected Applicant's argument that he was unable to prepare and present a complete and accurate § 2255 motion because prison officials misplaced Applicant's trial transcripts. Id., ECF No. 209. Moreover, the sentencing court explained that Applicant did not cite what new evidence, if any, he discovered from the transcripts that supports the merits of his § 2255 claims. Id. Applicant appealed this decision and his request for a certificate of appealability was denied. Id., ECF No. 220; see also United States v. Winkles, No. 09-55987 (9th Cir.), ECF No. 12.
Applicant proceeded to file multiple actions in the United States Court of Appeals for the Ninth Circuit requesting authorization to file a second or successive § 2255 motion in the sentencing court. See In re: Clifford Marcus Winkles, No. 10-72904 (9th Cir.); In re: Clifford Marcus Winkles, No. 10-71190 (9th Cir.); In re: Clifford Marcus Winkles, No. 12-70783 (9th Cir.); and In re Clifford Marcus Winkles, No. 13-72920 (9th Cir.). The Ninth Circuit denied all of Applicant's requests. Id.
On April 4, 2013, Applicant filed another motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b) in the sentencing court. See United States v. Winkles, No. 00-cr-00359-DDP-2 (C.D. Cal.), ECF No. 231. In the motion, Applicant asserts that "extraordinary circumstances" affected the integrity of his § 2255 proceedings, and that the sentencing court improperly denied his previous motions for reconsideration of the order denying his § 2255 motion. Id. As relief, Applicant essentially sought reconsideration of the sentencing court's initial order denying § 2255 relief and to be heard on his amended § 2255 motion. Id. The sentencing court summarily denied the motion without explanation. Id., ECF No. 235. Applicant appealed. See United States v. Winkles, No. 13-56376 (9th Cir.). The Ninth Circuit initially remanded the case to the district court for the limited purpose of granting or denying a certificate of appealability. Id., ECF No. 4. The sentencing court denied a certificate of appealability finding there had been no substantial showing of the denial of a constitutional right. Id., ECF No. 6. On December 16, 2013, however, the Ninth Circuit appointed counsel to Applicant and referred this matter to a merits panel to determine whether the motion for relief from judgment is a legitimate Rule 59(e) or Rule 60(b) motion, and if so, whether a certificate of appealability is necessary. Id., ECF No. 11. The Ninth Circuit also directed the parties to address whether the sentencing court abused its discretion by denying the motion for relief from judgment. Id. On January 20, 2015, Mr. Winkles, through appointed counsel, submitted his Reply Brief, where he requests that the Ninth Circuit reverse the judgment of the district court and remand for the district court to: (1) reconsider its section 2255 order, and (2) consider his amended habeas claims in the first instance. Id., ECF No. 41. Oral Arguments are scheduled in the case on June 1, 2015. Id., ECF 45.
On April 4, 2014, Applicant filed a § 2241 habeas application in this Court, seeking to invoke the savings clause under § 2255(e) to challenge the validity of his sentence and conviction. See Winkles v. No Named Respondent, 14-cv-974. On June 19, 2014, Magistrate Judge Boland ordered Applicant to show cause why the action should not be dismissed without prejudice because he has an adequate and effective remedy in the sentencing court pursuant to § 2255. See id., ECF No. 18. On June 27, 2014, Applicant filed a Response ( See id., ECF No. 19) arguing that the remedy in § 2255 is inadequate or ineffective for three reasons. First, he asserted that the remedy under § 2255 is inadequate or ineffective because the remedy only is available to test a sentence that is "being served." Id. at ECF No. 19 at 4. He argued that he is "presently incarcerated under sentence for another sentence imposed" based on his concurrent and consecutive sentencing arrangement, and thus he cannot "test" his conviction under § 2255. Id. at 5-7. Next, Applicant contended that the remedy is inadequate or ineffective because "the sentencing court refuses to consider the § 2255 motion, and inordinately delays consideration of the § 2255 motion, and is unable to grant complete relief." Id. at 17. He asserted that "extraordinary circumstances impeded his ability to raise Constitutional claims in a timely manner on § 2255." Id. He argues that his initial § 2255 motion was incomplete because prison officials withheld trial transcripts, and that upon receipt of the transcripts, he sought to amend his § 2255 motion but that the sentencing court never received or did not file the amended motion, thereby depriving him of one "full round" of meaningful post-conviction relief. Id. at 18. Applicant's third argument was that he has a federal constitutional right to be released upon proof of actual innocence. Id. at 20. In support of this argument, he asserts that his convictions under 18 U.S.C. § 924(c) are improper on a Pinkerton theory and that the convictions were obtained by the use of false and fabricated evidence. Id. at 8-16, 21.
On July 17, 2014, this Court dismissed the Application without prejudice for lack of statutory jurisdiction because the Applicant failed to demonstrate that the remedy available to him in the sentencing court or the circuit court, pursuant to 28 U.S.C. § 2255, was inadequate or ineffective. Id. at ECF No. 20. On July 28, 2014, Applicant filed a Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 59(e) (Id. at ECF No. 23), which was denied by the Court on August 1, 2014 (Id. at ECF No. 24). On July 29, 2014, Applicant filed a Notice of Appeal. Id. at ECF No. 25. The Tenth Circuit affirmed the district court's dismissal of the case without prejudice on February 20, 2015. Id. at ECF No. 29.
The instant action was commenced on March 25, 2015, and Applicant asserts three claims in his § 2241 application: "(1) the Tenth Circuit's Precedent as Established in Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), effectively renders section 2255(e) or (h) unconstitutional; (2) actually innocent of violating 18 U.S.C. 924(c) and sentenced above the statutory maximum for the crime Mr. Winkles ...