Woods v. USA

Filing 10

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/3/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02276-BNB
ARTHUR WOODS,
Applicant,
v.
T. K. COZZA-RHODES,
Respondent.

ORDER OF DISMISSAL

Applicant, Arthur Woods, is in the custody of the United States Bureau of Prisons
and currently is incarcerated at the Federal Correctional Institution in Florence,
Colorado. Mr. Woods, acting pro se, initiated this action by filing a pleading requesting
relief pursuant either to 28 U.S.C. § 2255 or to 28 U.S.C. § 2241. The pleading was
deficient because Mr. Woods failed to file his claims on a proper Court-approved form
used in filing § 2241 actions. On September 6, 2013, Mr. Woods filed a Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2241. In the petition, Mr. Woods requests
that he be resentenced under the Fair Sentencing Act and consistent with his
indictment. Although Mr. Woods did not submit his claims on a proper Court-approved
form, as directed, the form is a federal agency approved form, and includes the
necessary information. Therefore, on September 18, 2013, Magistrate Judge Boyd N.
Boland entered an Order to Show Cause directing Mr. Woods to respond and show
cause why the Application should not be denied because Mr. Woods has an adequate
and effective remedy in the sentencing court in the United States District Court for the

Southern District of Alabama (Southern District of Alabama). Mr Woods filed a
Response on September 27, 2013.
The Court must construe the Application and Response liberally because Mr.
Woods is not represented b 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.
Mr. Woods was convicted on December 17, 1998, of one count of conspiracy to
possess with intent to distribute crack cocaine and one count of possession with intent
to distribute crack cocaine. United States of America v. Woods, No. 98-cr-00061-CB-C1, ECF No. 12 (S.D. Ala. Dec. 17, 1998). He was sentenced to 330 months on each
count to run concurrently and to five years of supervised release. Id. at ECF No. 103.
The conviction and sentence was affirmed by the Eleventh Circuit on January 18, 2000.
See No. 99-6029 (11th Cir. Jan. 18, 2000). Mr. Woods filed a 28 U.S.C. § 2255 motion
on December 11, 2000. Woods, No. 98-cr-00061 at ECF No. 116. The Southern
District of Alabama denied the § 2255 motion on May 10, 2001. Id. at ECF No. 128.
Mr. Woods appealed that denial and the Eleventh Circuit denied the appeal on
November 14, 2001. Id. at ECF Nos. 131 and 134. Mr. Woods then filed a motion
pursuant to 18 U.S.C. § 3582 on June 20, 2008, which was granted, and his sentence
was reduced to 264 months over objections by Mr. Woods that the reduction was
inadequate. Id. at ECF Nos. 136, 144-49, and 151. Mr. Woods appealed and the
Eleventh Circuit affirmed the reduction. Id. at ECF Nos. 150 and 157. Mr. Woods then
filed a second § 3582 motion on January 20, 2012, that was denied on July 16, 2012.
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Id. at 158 and 165.
Mr. Woods raises three claims in this Application, including: (1) failure by the trial
court to submit to the jury an element that increased the mandatory minimum sentence;
(2) a sentence that includes an offense that was not included in the indictment; and (3)
actual innocence.
“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); 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. Mr. Woods does not assert any of these
circumstances.
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Another circumstance where the remedy in a § 2255 motion may be inadequate
and 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.
App’x 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, Mr. Woods 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.
The sentencing court’s denial of Mr. Woods’ § 2255 motion on the merits does not
demonstrate 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
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Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963)).
Also, in his Reply, Mr. Woods asserts that § 2255 is inadequate and ineffective
because subsequent to his conviction, direct appeal, and § 2255 motion, the
substantive law changed based on the United States Supreme Court decision in Alleyne
v. United States, — U.S. —, 133 S. Ct. 2151 (2013). Mr. Woods may not rely on
Alleyne for relief in this action. The Tenth Circuit Court of Appeals has 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, No. 13-5103, 2013 WL 5200425, at *2 (10th Cir. Sept. 17, 2013).
Because Mr. Woods fails to demonstrate the remedy available to him in the
sentencing 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 Mr.
Woods 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 Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Application is denied and the action is dismissed because
Mr. Woods fails to assert that his remedy in the United States District Court for the
Southern District of Alabama is ineffective and inadequate. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this

3rd

day of

October

, 2013.

BY THE COURT:

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

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