Holloway v. Deham

Filing 13

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/9/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02737-GPG
DONALD D. HOLLOWAY,
Applicant,
v.
DEBORAH DENHAM, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant Donald D. Holloway is in the custody of the Federal Bureau of Prisons
and currently is incarcerated at the Federal Correctional Institution in Englewood,
Colorado. Applicant, acting pro se, initiated this action by filing a 28 U.S.C. § 2241. On
November 13, 2014, Magistrate Judge Boyd N. Boland directed Applicant to file and
state clearly the nature of his claims. Applicant filed an Amended Application on
December 2, 2014.
Magistrate Judge Gordon P. Gallagher then reviewed the December 2 Amended
Application and found as follows.
First, it is clear that Applicant is challenging the validity of at least
three criminal convictions in this § 2241 habeas corpus action. Applicant
describes two of the cases that were addressed in his presentence report,
but he does not provide the details of the 2010 conviction, other than to
briefly refer to the conviction in the Request for Relief section of the
Amended Application. Am. Application at 5.
The Court has reviewed the Public Access to Court Electronic
Records (PACER) and found at least three federal criminal cases that
involve Applicant. See United States v. Holloway, No. 10-cr-00117-SMJ-1
(E.D. Wash. Apr. 26, 2011) (possession of child pornography); United
States v. Holloway, No. 02-cr-00110-FVS-1 (E.D. Wash. Sept. 20, 2002)

(possession with intent to distribute marijuana); United States v. Holloway,
No. 92-cr-00044-FVS-1 (E.D. Wash. Aug. 1, 1996) (manufacturing of
marijuana). Based on Applicant’s description of the 1981 and 1992
convictions, these cases are state criminal convictions. Am. Application at
7.
In Case No. 10-cr-00117-FVS-1, Applicant pled guilty to one count
of possession of child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B) and was sentenced to 144 months of incarceration.
Applicant has not filed an appeal or a 28 U.S.C. § 2255 motion in Case
No. 10-cr-00117-FVS-1. In Case No. 02-cr-00110-FVS-1, Applicant pled
guilty to one count of possession with intent to distribute marijuana in
violation of 21 U.S.C. § 841(a)(1) and was sentenced to ninety-six months
of incarceration. Applicant filed a § 2255 motion in this case, which was
denied. Finally, in Case No. 92-cr-00044-FVS-1, Applicant originally was
sentenced to sixty months on July 21, 1992, for manufacturing marijuana.
He filed a § 2255 motion, which was denied on October 22, 1993, and the
denial was affirmed on appeal. Applicant filed a second § 2255 motion in
this case, which was granted, and the matter was set for trial. Applicant
then entered into a change of plea and was resentenced to twenty-four
months on July 29, 1996.
To challenge a state criminal conviction, and to the extent Applicant
is able to do so in the 1981 and 1992 State of Washington convictions, he
must challenge these convictions in the proper jurisdiction, which is not
the State of Colorado.
To the extent, Applicant challenges his 2010 federal conviction, 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).
To challenge his 2010 federal criminal conviction, Applicant 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
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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”).
ECF No. 11 at 3-5.
Magistrate Judge Gallagher directed Applicant to show cause why the challenge
to the federal 2010 conviction should not be denied because he has an adequate and
effective remedy pursuant to § 2255 in the sentencing court. Applicant filed a Response
on January 30, 2015.
The Court must construe the Application and Response liberally because
Applicant 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 cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Applicant does not disagree in his Response with Magistrate Judge Gallagher’s
findings in the Order to Show Cause. He does, however, contend that pursuant to
Persaud v. United States, 134 S. Ct. 1023 (2014), § 2241 relief is available to challenge
unlawful sentences and unlawful convictions. ECF No. 12 at 1. The Supreme Court did
not issue a substantive decision in Persaud. The Court granted certiorari, vacated a
decision by the Fourth Circuit Court of Appeals, and remanded for further consideration
in light of the Solicitor General’s brief. Persaud, 134 S. Ct. at 1023. Persuad, therefore
is of no assistance to Applicant.
In the remainder of the Response, Applicant describes the events that took
place prior to his conviction and argues that the United States District Court of the
Eastern District of Washington violated Rules 32 and 52(b) when it failed to attach the

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sentencing proceedings for state convictions Nos. 81-1-00455-6 and 92-1-00022-7.
Finally, Applicant contends in the Response that both the United States Attorney and
the federal judge that presided over his federal criminal trial in the Western District of
Washington are biased towards him and would preclude him from receiving a fair review
of his claims. Id.
“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. Applicant 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) (incorporating in the savings
clause a test for actual innocence that would allow a habeas corpus application
pursuant to § 2241 to proceed)). The Tenth Circuit, however, has now explicitly
declined to adopt the Reyes-Requena test. See Prost, 636 F.3d at 593-94. The Tenth
Circuit disregarded the “actually innocent” provision, as a novel question that creates “a
test Congress never authorized,” Id. at 596 (Tenth Circuit declines to incorporate actual
innocence under a new statutory interpretation to invoke the savings clause).
Furthermore, the erroneous circuit foreclosure test, see In re Davenport, 147
F.3d 605, 610 (7th Cir. 1998) (based on the fundamental legality of a sentence, the
Seventh Circuit found § 2241 an appropriate avenue for relief when a defendant is
unable to obtain relief on a basis not yet established by law in a first motion and unable
to do so in a successive motion when relief is neither newly discovered evidence nor a
new rule of constitutional law), is rejected by the Tenth Circuit as a way to invoke the
savings clause and proceed to § 2241. Prost, 636 F.3d at 593-94. The Tenth Circuit
found that the foreclosure test disregards § 2255(h) in allowing an applicant to proceed
through the § 2255(e) savings clause in disregard of Congress’s concern for finality
when a conviction has been tested through trial, appeal, and one round of collateral
review, id. at 591.

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Applicant 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.” Id. at 587. A sentencing
court’s denial of an applicant’s § 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.”). Furthermore,
“[f]ailure 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 Williams v.
United States, 323 F.2d 672, 673 (10th Cir. 1963)).
That Applicant now is time-barred from raising his claims in a § 2255 motion, by
itself, does not demonstrate that the remedy provided in § 2255 is inadequate or
ineffective. See Bradshaw, 86 F.3d at 166 (quoting Williams v. United States, 323 F.2d
672, 673 (10th Cir. 1963) (“Failure to obtain relief under § 2255 does not establish that
the remedy so provided is either inadequate or ineffective.”). Also, that Applicant has
not filed a § 2255 in the criminal case at issue and that the federal judge or federal
prosecutor are biased towards him are not examples of the extremely limited
circumstances that support a finding of inadequate or ineffective remedies in a
sentencing court. Caravalho, 177 F.3d at 1178.
Because none of Applicant’s claims demonstrate that any remedy available to
him in the sentencing court, pursuant to 28 U.S.C. § 2255, is inadequate or ineffective,
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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
Applicant files a notice of appeal he must also pay the full $505 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
Applicant fails to assert that his remedy in the United States District Court for the
Eastern District of Washington is ineffective and inadequate. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

9th

day of

March

, 2015.

BY THE COURT:

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

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