Perez-Carrera v. Stancil

Filing 8

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/12/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00463-GPG

JOSE PEREZ-CARRERA,
Applicant,
v.
M. A. STANCIL, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant Jose Perez-Carrera is in the custody of the Federal Bureau of Prisons
and currently is incarcerated at the Federal Correctional Institution in Florence,
Colorado. Applicant, acting pro se, initiated this action on March 5, 2015, by filing a 28
U.S.C. § 2241. Magistrate Judge Gordon P. Gallagher reviewed the Application and
found as follows.
Applicant asserts that he pled guilty to one count of bank robbery in
violation of 18 U.S.C. §§ 2113(a), (d), and (e), and 2; one count of
carjacking in violation of 18 U.S.C. §§ 2119(3) and 2; one count of
possession of two semi-automatic assault weapons in violation of 18
U.S.C. §§ 922(v)(1), 924(a)(1)(B) and 2; two counts of carrying and using
a firearm during and in relation to a crime of violence in violation of 18
U.S.C. §§ 924(c)(1) and (3), and 2. Applicant further asserts that he was
sentenced to a total of 653 months of incarceration.
Applicant asserts that he was foreclosed by circuit and Supreme
Court precedence from challenging the errors in his sentence at the time
of his sentencing, direct appeal, and collateral attack pursuant to 28
U.S.C. § 2255. Applicant contends that he lacked the opportunity to
obtain relief based on the decisions in Persuad v. United States, 134 S.
Ct. 1023 (2014), and Alleyne v. United States, 133 S. Ct. 2151 (2013). He
further asserts that he also is foreclosed from challenging the errors in his

sentence by filing a successive § 2255 motion because he is not relying
on newly discovered evidence or a new rule of constitutional law as
required under § 2255(8), [Footnote omitted] but pursuant to Persuad a
“sentence imposed above the otherwise applicable statutory maximum
based on a legal error is a fundamental defect redressable under the
savings clause.” Application, ECF No. 1, at 3.
The Court has reviewed the docket in United States v. Jose R.
Perez-Carrera, No. 96-cr-00039-SEC-2 (D. P.R. May 27, 1998),
Applicant’s criminal case at issue in this action. The docket confirms he
pled guilty to the counts noted above, id. at ECF No. 139, and 140, and
was sentenced to a total of 653 months, id. at ECF No. 236. Applicant
filed a direct appeal, which resulted in a reduction of sentence in count two
from ten to five years, but did not affect the total aggregate sentence. See
United States v. Perez-Carrera, No. 98-1788 (1st Cir. Mar. 15, 2001).
Applicant then filed a § 2255 motion on June 21, 2002, see PerezCarrera v. United States, No. 02-cv-01963-SEC (D. P.R. Nov. 25, 2003),
which was denied on November 25, 2003, id. at ECF No. 18, and
dismissed on appeal as untimely, see Perez-Carrera v. United States, No.
15-1952 (1st Cir. Sept. 28, 2005). Applicant also filed an appeal of the
denial of a Fed. R. Civ. P. 60(b) motion in Case No. 02-cv-01963-SEC,
which was dismissed, Perez-Carrera, No. 10-1774 (1st Cir. Jan. 25,
2011). Applicant continued to file motions to reconsider in Case No. 02cv-01963-SEC, which were denied as an attack of the underlying
conviction and found to be successive § 2255 motions that lacked
authorization by the First Circuit. Perez-Carrera, No. 02-cv-01963 at ECF
No. 121.
Applicant then filed a second § 2255 motion that was denied as
successive. Perez-Carrera v. United States, No. 12-cv-01716-SEC (D.
P.R. Jan. 8, 2014). Applicant raised the Alleyne issue in this § 2255
motion, but the court found Alleyne did not “carry the day for the
petitioner,” because it is not applied retroactively. Id., ECF No. 32 at 4.
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. §
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2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see 28
U.S.C. § 2255(e).
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 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”).
That Applicant sought and was denied relief in a § 2255 motion
does not demonstrate that the remedy was inadequate or ineffective. See
Williams, 323 F.2d at 673. Furthermore, even if Applicant is barred from
raising his claims in a second or successive motion pursuant to § 2255,
the remedy provided in § 2255 still is not inadequate or ineffective. See
Caravalho, 177 F.3d at 1179. Applicant fails to demonstrate the remedy
available pursuant to § 2255 in the sentencing court is inadequate or
ineffective under the Prost test.
Furthermore, Persaud does not provide jurisdiction for this
Application. 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.
ECF No. 6 at 1-4.
Magistrate Judge Gallagher directed Applicant to show cause why this action
should not be dismissed because he has an adequate and effective remedy pursuant to
§ 2255 in the sentencing court. Applicant filed a Response on May 5, 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.
In the Response, Applicant argues that pursuant to the Solicitor General’s
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conclusions in Persaud this Court may find that it has jurisdiction to review the merits of
his claims, because the type of legal error at issue in this case is cognizable under the
savings clause. Applicant further claims that Persaud stands for the position that the
fundamental statutory interpretation announced in Alleyne demonstrates a circumstance
which establishes § 2255 is inadequate and ineffective. Applicant asks that this Court
either grant the Application or stay the Application pending the outcome of Persaud.
As determined by Magistrate Judge Gallagher, 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 this action. Furthermore, Alleyne is not retroactive.
“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

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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
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

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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. 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)).
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,
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 declines to stay or certify
the issue to the Tenth Circuit as suggested by Applicant.
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The Court 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 District
of Puerto Rico is ineffective and inadequate. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

12th

day of

May

, 2015.

BY THE COURT:

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

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