Calloway v. Garcia

Filing 7

ORDER of Dismissal. The Amended Application is denied and the action is dismissed. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 3/1/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03224-BNB
CURTIS DEON CALLOWAY,
Applicant,
v.
RENEE GARCIA, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Curtis Deon Calloway, is a prisoner in the custody of the United States
Bureau of Prisons (BOP) who currently is incarcerated at the Federal Correctional
Institution (FCI) in Englewood, Colorado. Mr. Calloway filed pro se an amended
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the
validity of his criminal conviction and sentence in the United States District Court for the
District of Colorado (District of Colorado). He also filed a supporting brief. He has paid
the $5.00 filing fee. On January 24, 2012, Magistrate Judge Boyd N. Boland ordered
Mr. Calloway to respond and show cause why the amended application should not be
denied because he has an adequate and effective remedy pursuant to 28 U.S.C.
§ 2255 in the sentencing court. Mr. Calloway did not file a response to the Order to
Show Cause.
The Court must construe Mr. Calloway’s filings 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 deny the amended application and dismiss the action.
Mr. Calloway entered a guilty plea to bank fraud in violation of 18 U.S.C. § 1344
in Case No. 08-cr-00341-REB-1 in the District of Colorado. He was sentenced to 327
days in prison followed by five years of supervised release. The judgment of conviction
entered on April 28, 2009. He did not file a direct appeal. On January 12, 2011, Mr.
Calloway filed a motion to vacate, set aside, or correct sentence pursuant to § 2255,
which the sentencing court denied as untimely on January 19, 2011. He did not appeal
from the denial. On June 15, 2011, he again filed a motion pursuant to § 2255, which
the sentencing court denied as second or successive on June 30, 2011. He did not
appeal from the denial.
It is clear from the amended habeas corpus application that Mr. Calloway is
attacking his federal conviction and sentence. In his first and second claims, Mr.
Calloway asserts that the prosecution failed to disclose exculpatory evidence, in
violation of his due process right. As his third claim, Mr. Calloway alleges that the
prosecution relied on perjured testimony to obtain his conviction, in violation of his due
process right.
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 must be filed in the district where the prisoner is confined.” Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996). “A 28 U.S.C. § 2255 petition attacks the
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legality of detention . . . and must be filed in the district that imposed the sentence.” Id.
(citation omitted). “The purpose of section 2255 is to provide a method of determining
the validity of a judgment by the court which imposed the sentence, rather than by the
court in the district where the prisoner is confined.” Johnson v. Taylor, 347 F.2d 365,
366 (10th Cir. 1965) (per curiam). A habeas corpus application pursuant to 28 U.S.C.
§ 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). “The 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, 347 F.2d at 366. Finally, the remedy available pursuant to §
2255 is inadequate or ineffective only in “extremely limited circumstances.” Caravalho
v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999).
Mr. Calloway fails to demonstrate that the remedy available to him pursuant to
§ 2255 is inadequate or ineffective. The fact that Mr. Calloway has sought and been
denied relief pursuant to § 2255 does not mean that the remedy provided in § 2255 is
inadequate or ineffective. See Williams, 323 F.2d at 673. Furthermore, the fact that Mr.
Calloway likely is barred from raising his claims in a second or successive motion
pursuant to § 2255, by itself, also does not demonstrate that the remedy provided in
§ 2255 is inadequate or ineffective. See Caravalho, 177 F.3d at 1179. Therefore, Mr.
Calloway is foreclosed from proceeding under 28 U.S.C. § 2241.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
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(1962). If Applicant files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Amended Application is denied and the action is dismissed
because Mr. Calloway fails to demonstrate the remedy available to him in the
sentencing court is ineffective or inadequate to test the legality of his detention. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

1st

day of

March

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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