United States District Court, D. Colorado
MR. SOLOMON EDDIE BURNETTE, Applicant,
MISS T.K. COZZA RHODES, Warden, Respondent.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, SENIOR JUDGE
Applicant, Solomon Eddie Burnette, is a prisoner in the custody of the Federal Bureau of Prisons. Mr. Burnette initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging the validity of his convictions and prison sentence.
The Court must construe the Application filed by Mr. Burnette liberally 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 should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action for lack of statutory jurisdiction.
In 1999, Applicant was convicted on retrial in the United States District Court for the Western District of Tennessee of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); one count of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and one count of possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). See United States v. Burnette, 21 Fed. App’x 382, 385 (6th Cir. Oct. 10, 2001). He was sentenced as an armed career criminal to three hundred eighty-seven (387) months in prison. Id. The Sixth Circuit affirmed. Id. at 390.
Applicant previously challenged the validity of his conviction by filing in the sentencing court a motion pursuant to 28 U.S.C. § 2255 asserting three claims of ineffective assistance of counsel and a due process violation. See United States v. Burnette, No. 2:02-cv-02954-D/V (W.D. Tenn. Oct. 10, 2002). The sentencing court denied the § 2255 motion and denied a certificate of appealability. (Id.). The sentencing court also denied Applicant’s motion to vacate the judgment pursuant to Fed.R.Civ.P. 59(e) and 60(b). (See ECF No. 1, at 43-47). Applicant then requested leave to file a second or successive motion under § 2255, which was denied by the Sixth Circuit. (See id., at 51).
Applicant also filed in the sentencing court a second § 2255 motion seeking relief under Descamps v. United States, 133 S.Ct. 2276 (2013), that was dismissed for lack of jurisdiction as an unauthorized second or successive motion. See United States v. Burnette, No. 14-cv-02435-SHM (W.D. Tenn. June 9, 2014).
Moreover, Applicant has filed in other district courts several petitions pursuant to 28 U.S.C. § 2241 challenging the validity of his conviction and sentence, which have been dismissed for failure to demonstrate that the remedy under § 2255 was inadequate or ineffective. See e.g., Burnette v. Warden, FCC Coleman-USP I, No. 11- cv-677-Oc-27TBS (M.D. Fla. Dec. 16, 2011); Burnette v. O’Brien, No. 12cv43 (N.D. W.Va. June 18, 2012); Burnette v. Daniels, No. 14cv284 (E.D. Tex. May 22, 2014).
In 2015, Applicant filed in this Court an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the validity of his conviction and sentence. See Burnette v. Rhodes, Case No. 15-cv-02478-LTB (D. Colo. Nov. 10, 2015). On December 23, 2015, the Court dismissed the action because Applicant failed to comply with the Court’s order to show cause why the action should not be dismissed for failure to demonstrate that the remedy provided in § 2255 was inadequate or ineffective. Applicant filed a motion for reconsideration, which the Court denied on January 28, 2016. See Burnette v. Rhodes, No. 15-cv-02478-LTB, 2016 WL 345493 (D. Colo. Jan. 28, 2016). In the January 28 order, the Court reviewed Applicant’s response to the order to show cause and found that he did not demonstrate that the § 2255 remedy was inadequate or ineffective. Specifically, the Court rejected Applicant’s arguments that the remedy was inadequate or ineffective because his claims are supported by “the Supreme Court’s new, narrowing construction of a federal criminal statute, he cannot meet the stringent requirements for filing a second or successive § 2255 motion, and he is actually innocent.” Id. at *4.
In the instant habeas corpus action, Applicant asserts the same due process and ineffective assistance of counsel claims that he raised in his previous habeas corpus action in this Court. (ECF No. 1, at 3). As relief, he asks the Court to vacate his judgment of conviction, order a new trial or evidentiary hearing to determine the merits of his claim, or order his release from prison. (Id., at 5).
The purposes of an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion pursuant to 28 U.S.C. § 2255 are distinct and well established. “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity” and “[a] 28 U.S.C. § 2255 petition attacks the legality of detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). 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); see 28 U.S.C. § 2255(e).
It is clear to the Court, and Applicant does not dispute, that he is challenging the validity of his conviction and sentence in this habeas corpus action. Therefore, his claims must be raised in the Western District of Tennessee in a motion pursuant to § 2255 unless he demonstrates that the § 2255 remedy is inadequate or ineffective.
“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 [application] 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)). 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, 634 F.3d 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 test for determining whether the remedy provided in the sentencing court pursuant to § 2255 is inadequate or ineffective is whether Applicant’s claims could have been ...