Winkles v. No Named Respondent

Filing 18

ORDER to Show Cause: 16 Ex Parte Application for Authorization to File Habeas Petition in Prisoner's Own Format is denied as premature. Petitioner to show cause why the Application should not be denied, by Magistrate Judge Boyd N. Boland on 6/19/14.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00974-BNB
CLIFFORD MARCUS WINKLES,
Applicant,
v.
[NO NAMED RESPONDENT] (WARDEN),
Respondent.

ORDER TO SHOW CAUSE

Applicant, Clifford Marcus Winkles, is a prisoner in the custody of the Federal
Bureau of Prisons incarcerated at the United States Penitentiary, Florence High in
Florence, Colorado. Applicant initiated this action by filing pro se an “Ex Parte Motion
for: Appointment of Counsel” (ECF No. 1). In response to the Court’s Order to Cure
(ECF No. 3), Mr. Winkles filed an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (ECF No. 11). In both documents, Mr. Winkles challenges the validity
of his conviction and sentence in Case No. 00-cr-00359 in the United States District
Court for the Central District of California. He has paid the $5.00 filing fee.
I. Pro Se Litigant
The Court must construe the papers filed by Mr. Winkles liberally because he is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (pro se complaints
are held “to less stringent standards than formal pleadings drafted by lawyers”); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as

a pro se litigant’s advocate. See Hall, 935 F.2d at 1110 (noting that a pro se litigant
must make more than conclusory allegations to state a valid claim). The Court has
reviewed the Ex Parte Motion and Application and orders Mr. Winkles to show cause
why the action should not be dismissed because Mr. Winkles has an adequate and
effective remedy in the sentencing court under 28 U.S.C. § 2255.
II. Habeas Application
In his § 2241 Application, Mr. Winkles simply refers back to his forty-nine page
Ex Parte Motion for Appointment of Counsel. In the Ex Parte Motion, Mr. Winkles
asserts that he is challenging the validity of his conviction and sentence in the United
States District Court for the Central District of California. Mr. Winkles explains that he
“intends to invoke 2241 relief - under the ‘Savings Clause’ of 2255(e) - to present
arguments of Actual Innocence.” (ECF No. 1 at 3). Mr. Winkles alleges that
“extraordinary circumstances occurred during the 2255 proceeding that rendered the
remedy under 2255 inadequate or ineffective to test the legality of his detention.” (Id. at
5-6). Specifically, he contends that the Bureau of Prisons misplaced trial transcripts that
Mr. Winkles needed to prepare and submit a complete and accurate § 2255 motion. (Id.
at 6). He then argues that when he finally received the trial transcripts, he sought to
amend his § 2255 motion but the sentencing court did not file and consider the
amended § 2255 motion. (Id.). Mr. Winkles then sets forth three claims of actual
innocence that he intends to assert in his § 2241 Application. (Id. at 6-49).
III. Procedural History
Mr. Winkles was convicted of violating 18 U.S.C. § 371 (conspiracy to commit
bank robbery); 18 U.S.C. § 2113(a)(d) (armed bank robbery); 18 U.S.C. § 924(c)
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(brandishing a firearm during a crime of violence); 18 U.S.C. § 924(c) (using and
carrying a firearm during a crime of violence); and 18 U.S.C. § 1512(b)(1) (witness
tampering). (ECF No. 1 at 4). The judgment of conviction was affirmed on direct
appeal. See United States v. Winkles, No. 01-50588 (9th Cir. Feb. 13, 2003).
Mr. Winkles challenged his conviction and sentence in the sentencing court by
filing a motion pursuant to 28 U.S.C. § 2255, which the sentencing court denied. See
United States v. Winkles, No. 00-cr-00359-DDP (C.D. Cal.), ECF No. 200. Mr. Winkles
then filed two motions for reconsideration, which also were denied. Id., ECF Nos. 206 ,
209. Mr. Winkles appealed, and his request for a certificate of appealability was denied.
Id., ECF No. 220. The Ninth Circuit also denied Mr. Winkles’ applications for
authorization to file a second or successive § 2255 habeas corpus petition in the district
court. Id., ECF Nos. 224, 228. Mr. Winkles continued to seek relief in the sentencing
court by filing a motion for relief from judgment pursuant to Fed. R. Civ. P. 59(e) or
60(b). Id., ECF Nos. 240, 243. The sentencing court denied Mr. Winkle’s motion and
Mr. Winkles appealed. Id., ECF No. 244. The Ninth Circuit has referred this matter to a
merits panel, appointed counsel to Mr. Winkles, and set a briefing schedule. Id., ECF
Nos. 244. Mr. Winkle’s pending appeal in the Ninth Circuit appears to raise the same
issues Mr. Winkles asserts in his habeas application in the instant action. Id., ECF No.
231, 237.
IV. Inadequate or Ineffective Remedy Under § 2255
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
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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 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). 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).
Mr. Winkles bears the burden of demonstrating that the remedy available
pursuant to § 2255 is inadequate or ineffective. See Prost v. Anderson, 636 F.3d 578,
584 (10th Cir. 2011). This burden is not easily satisfied because “[o]nly in rare
instances will § 2255 fail as an adequate or effective remedy to challenge a conviction
or the sentence imposed.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010); see
also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (noting that 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 Mr. Winkles’
claims could have been raised in an initial § 2255 motion. See Prost, 636 F.3d at 584.
“If the answer is yes, then the petitioner may not resort to the savings clause [in §
2255(e)] and § 2241.” Id.
In the Ex Parte Motion and § 2241 Application, Mr. Winkles fails to demonstrate
that the remedy available to him pursuant to § 2255 in the sentencing court is
inadequate or ineffective. Moreover, Mr. Winkles currently is represented by counsel in
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a pending case before the Ninth Circuit in which the same issues he asserts in this case
are being raised and addressed. Thus, the remedy available pursuant to § 2255 is not
inadequate or ineffective at this point. See e.g., Williams v. Copenhaver, No. 12-cv01356-LJO-BAM, 2012 WL 3834847, at *3 (E.D. Cal. Sept. 4, 2012) (Section 2255 not
inadequate and ineffective where petitioner currently had three appeals pending at the
appellate court all dealing with the same challenges raised in the instant petition).
Therefore, Mr. Winkles will be ordered to show cause why this action should not be
dismissed without prejudice because at this time he has an adequate and effective
remedy pursuant to § 2255.
Also before the Court is Mr. Winkles’ “Ex Parte Application for Authorization to
File Habeas Petition in Prisoner’s Own Format” (ECF No. 16), filed on June 13, 2014.
Because the Court has ordered Mr. Winkles to show cause why this action should not
be dismissed, the Court will deny the motion to file a habeas petition in his own format
as premature.
Accordingly, it is
ORDERED that Mr. Winkles show cause in writing within thirty (30) days from
the date of this order why the habeas corpus application should not be denied for the
reasons stated in this order. It is
FURTHER ORDERED that if Mr. Winkles fails to show good cause within the
time allowed, the application will be denied and the action will be dismissed without
further notice. It is
FURTHER ORDERED that the Ex Parte Applciation for Authorization to File

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Habeas Petition in Prisoner’s Own Format (ECF No. 16) is denied as premature.
DATED June 19, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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