Pratt v. Oliver

Filing 14

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/29/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02829-GPG
TYRONE PRATT,
Applicant,
v.
J. OLIVER, Warden, USP Florence,
Respondent.

ORDER OF DISMISSAL

Applicant Tyrone Pratt is in the custody of the United States Bureau of Prisons
and currently is incarcerated at the United States Penitentiary in Florence, Colorado.
Applicant, acting pro se, initiated this action by filing a 28 U.S.C. § 2241 action
challenging the validity of his conviction and sentence. Applicant asserts that pursuant
to Descamps v. United States, 133 S. Ct. 2276 (2013), his conviction no longer qualifies
as a predicate “violent Felony” under 18 U.S.C. § 924(e), Application, ECF No. 1, at 3,
and that he is able to raise this claim in a § 2241 action because he did not have the
opportunity to raise the issue in his 28 U.S.C. § 2255 motion, and is foreclosed from
raising the issue in a successive § 2255 motion.
On December 4, 2014, Magistrate Judge Gordon P. Gallagher entered an Order
to Show Cause directing Applicant to respond and show cause why the Application
should not be denied because Applicant has an adequate and effective remedy in the
sentencing court in the United States District Court for the Western District of
Pennsylvania. Applicant filed a Response on December 30, 2014.

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 is challenging the legality of his conviction and sentence in United
States v. Pratt, No. 06-cr-00077-GD-1 (W.D. Pa. Nov. 7, 2007). See Application at 2-3
and 4. Applicant was found guilty of one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and was sentenced to
200 months of incarceration and five years of supervised release. No. 06-cr-00077-GD1 at ECF No. 79. The conviction and sentence was affirmed on appeal. See United
States v. Pratt, No. 07-4401 (3rd Cir. Apr. 16, 2009).
Applicant filed a 28 U.S.C. § 2255 motion on October 13, 2009, in the Western
District of Pennsylvania. See Pratt, No. 06-cr-00077-GD-1 at ECF No. 94. Applicant
requested to amend the motion. Id. at ECF No. 106. The court found the new claims
properly related back to those claims stated in the original motion under Fed. R. Civ. P.
15(c) and reviewed all of Applicant’s claims on the merits. Id. at ECF No. 116. One of
the claims Applicant raised in his amended § 2255 motion involved a prior conviction
that was found to be a “violent felony.” Id. at ECF Nos. 106 and 107. Applicant
asserted that his 2004 conviction for intimidation of witnesses and terroristic threats,
which the trial court found to be a “violent felony” conviction, no longer qualified as a
predicate offense under the ACCA in light of Begay v. United States, 553 U.S. 137
(2008), and therefore could not be used to establish him as an armed career criminal.
Id., ECF No. 116 at 16. The trial court discussed the criminal information of the prior

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conviction at issue, applied the modified categorical approach to determine whether
applicant had committed a violent felony, and was satisfied that conviction enumerated
offenses set forth in § 924(e)(2)(B)(ii), even under post-Begay analysis. Id. at 21. The
Third Circuit denied Applicant’s certificate of appealability in his appeal of the denial of
his § 2255, United States v. Pratt, No. 12-1444 (3rd Cir. Aug. 28, 2012), and the United

States Supreme Court denied certiorari review on March 25, 2013, United States v.
Pratt, No. 12-8878 (2013).
Applicant then filed a successive § 2255 motion raising a claim pursuant to
Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013). Id. at ECF No. 122. The
Western District of Pennsylvania dismissed the motion without prejudice on June 30,
2014, and directed Applicant that he must seek authorization in the Third Circuit to file a
successive petition. Id. at ECF No. 123. As of the date of this Order, Applicant has not
filed a request for authorization in the Third Circuit.
Applicant raises three claims in this Application: (1) his conviction no longer
qualifies as a predicate violent felony under § 924(e); (2) the savings clause reaches his
erroneous sentence; and (3) Descamps is retroactive. In the Response, Applicant
asserts that the Tenth Circuit has yet to address whether a sentencing error may be
fundamental and warrant a resort to the savings clause. Applicant also asserts a
challenge to a sentence is not available in a § 2255 motion unless there is a
fundamental defect and a miscarriage of justice. For the following reasons, Applicant’s
claims lack a basis for finding he may proceed under § 2241.
“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

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§ 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.
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

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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.
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 (emphasis
added). The sentencing court’s denial of 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
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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
Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963)).
To the extent Applicant asserts that he is unable to raise a statutory argument in
a successive § 2255 motion, “[t]he fact that § 2255 bars [Applicant] from bringing his
statutory interpretation now, in a second § 2255 motion . . . , doesn’t mean the § 2255
remedial process was ineffective or inadequate to test his argument.” Prost, 636 F.3d
at 580; see also Brace, 634 F.3d at 1170 (rejecting applicant’s claim that § 2255 was
inadequate or unavailable because he would be precluded from bringing a statutory
interpretation argument in a second § 2255 motion).
Furthermore, Applicant’s inadequate and ineffective § 2255 argument, based on
an alleged substantive law change post Descamps, is flawed for the following reasons.
In Descamps, the Supreme Court states that it was not announcing a new rule but
applying case law to help “implement the categorical approach when a defendant was
convicted of violating a divisible statute.” See Descamps, 133 S. Ct. 2276, 2285. The
Tenth Circuit also has found, as is the case here, that there was “no impediment to . . .
raising [violent felony] arguments before [the Descamps] decision was handed down.”
United States v. Tenderholt, 587 F. App’x 505, 506 (10th Cir. 2014). Applicant,
therefore, had an adequate and effective remedy in a § 2255 motion in the sentencing
court to address his violent felony claim; and he may not rely on Descamps as a basis

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for allowing him to proceed in a § 2241 action to challenge his sentence in the Western
District of Pennsylvania.
Because Applicant 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
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
Western District of Pennsylvania is ineffective and inadequate. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 29th day of

January

, 2015.

BY THE COURT:

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

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