Thigpen v. Daniels

Filing 10

ORDER of Dismissal. ORDERED that the habeas corpus application pursuant to 28 U.S.C. § 2241 filed by Applicant, Douglas M. Thigpen, is denied. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 5/16/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00852-BNB
DOUGLAS M. THIGPEN,
Applicant,
v.
CHARLES A. DANIELS, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, Douglas M. Thigpen, is a prisoner in the custody of the United States
Bureau of Prisons who currently is incarcerated at United States Penitentiary in
Florence, Colorado. He filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, and paid the $5.00 filing fee. See ECF No. 1.
On April 18, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Thigpen to
show cause within thirty days why the instant application should not be denied because
he had an adequate and effective remedy pursuant to 28 U.S.C. § 2255 in the United
States District Court for the Northern District of Illinois (Northern District of Illinois), the
sentencing court. On May 11, 2012, Mr. Thigpen filed his response to the order to show
cause.
The Court must construe Mr. Thigpen’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 application will be denied.
According to www.pacer.psc.uscourts.gov (Public Access to Court Electronic
Records), Mr. Thigpen pleaded guilty in the Northern District of Illinois to one count of
bank robbery pursuant to 18 U.S.C. § 2113(a). At sentencing, the district court found
that:
Thigpen had three prior convictions that qualified him for the
application of the career offender guideline, U.S.S.G. §
4B1.1 (2004). Specifically, the court determined that a 1990
conviction for robbery and a 1999 conviction for aggravated
battery constituted crimes of violence for purposes of the
career offender guideline, while a 1992 conviction for
possession of a controlled substance with intent to deliver
comprised a controlled substance offense. Based on the
resulting guideline range, the district court imposed a
sentence of 151 months’ imprisonment. The district court
also ordered restitution in the amount of $2,204, payable in
sixty days.
United States v. Thigpen, No. 05-1866 (7th Cir. Aug. 7, 2006), published at 456 F.3d
766, 768 (7th Cir. 2006). The amended judgment was entered on April 25, 2005. See
United States v. Thigpen, No. 03-cr-01084-1 (N.D. Ill. Mar. 24, 2005).
Mr. Thigpen appealed directly to the United States Court of Appeals for the
Seventh Circuit (Seventh Circuit), which affirmed his sentence, but vacated the
restitution order and remanded for the imposition of a proper restitution schedule. See
Thigpen, 456 F.3d at 771. On January 8, 2007, the United States Supreme Court
denied certiorari review. "[T]he court is permitted to take judicial notice of its own files
and records, as well as facts which are a matter of public record." Van Woudenberg ex
rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir.2000), abrogated on other grounds by
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McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
Mr. Thigpen asks that (1) his 151-month sentence be vacated, (2) he be
resentenced to 63-78 months of imprisonment, or (3) he be released because he
already has served 78 months in prison. Although he claims otherwise, Mr. Thigpen is
attacking the validity of his federal sentence.
As Magistrate Judge Boland pointed out in the April 18 show-cause order, Mr.
Thigpen’s request for relief is appropriate in a 28 U.S.C. § 2255 action, not a § 2241
action. The purposes of an application for a writ of habeas corpus pursuant to § 2241
and a motion pursuant to § 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 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 § 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
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1177, 1178 (10th Cir. 1999).
Mr. Thigpen fails to demonstrate that the remedy available to him pursuant to
§ 2255 is inadequate or ineffective. The fact that the sentencing court denied his § 2255
motion, see United States v. Thigpen, No. 08-cv-00266 (N.D. Ill. Jan. 14, 2008), and the
Seventh Circuit denied him a certificate of appealability and leave to proceed in forma
pauperis on appeal, United States v. Thigpen, No. 08-1453 (7th Cir. July 21, 2008),
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. Thigpen likely is barred from
raising his claims in a 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, the application will be denied and this action dismissed
because Mr. Thigpen has an adequate and effective remedy pursuant to § 2255.
Furthermore, 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 (1962). If Applicant files a notice of appeal he also must pay the full $455.00
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

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ORDERED that the habeas corpus application pursuant to 28 U.S.C. § 2241 filed
by Applicant, Douglas M. Thigpen, is denied because Applicant has an adequate and
effective remedy pursuant to 28 U.S.C. § 2255 in the United States District Court for the
Northern District of Illinois, the sentencing court. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

16th

day of

May

, 2012.

BY THE COURT:

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

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