Ranes v. Warden, FCI Englewood

Filing 4

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/4/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02406-GPG

THOMAS P. RANES,
Applicant,
v.
WARDEN, F.C.I. ENGLEWOOD,
Respondent.

ORDER OF DISMISSAL

Applicant, Thomas P. Ranes, is in the custody of the Federal Bureau of Prisons,
currently incarcerated at the Federal Correctional Institution in Englewood, Colorado.
On October 29, 2015, Applicant filed, through counsel, an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and a supporting Brief (ECF
No. 2) that challenges the constitutionality of 28 U.S.C. § 2255(e) and also the validity of
his conviction and sentence in case 3:06-cr-00041-RRB-1 in the United States District
Court for the District of Alaska. Applicant has paid the filing fee.
Pursuant to D.C.COLO.LCivR. 8.1(b)(4), this Court reviews “the pleadings of a
prisoner (whether represented by counsel or not) to determine whether the pleadings
should be dismissed summarily if the prisoner is . . . asserting claims pertinent to his or
her conviction or sentence . . . .” For the reasons discussed below, the § 2241
application will be dismissed.

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I. Background
On December 15, 2006, Applicant was charged in a Second Superseding
Indictment with:
Count 1 – Conspiracy to Import 1,000 Kilograms or More of Marijuana,
and MDMA or “ecstasy,” in violation of 21 U.S.C. §§ 952 and
960(a), (b)(1);
Count 2 – Conspiracy to Distribute and Possess with Intent to
Distribute, 1,000 Kilograms or More of Marijuana, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A);
Counts 3-136 – Money Laundering, Attempted Money Laundering,
Aiding and Abetting Money Laundering, in violation of 18 U.S.C. §§
1956(a)(1)(A)(i), (a)(1)(B)(i), (a)(1)(B)(ii) and 2;
Counts 137-140 – Money Laundering, in violation of 18 U.S.C. §§
1956(a)(2)(B)(i) and 2;
Count 141 – Criminal Forfeiture (Drug Offenses), pursuant to 21 U.S.C.
§§ 853(a)(1), (a)(2);
Count 142 - Criminal Forfeiture (Money Laundering), pursuant to 18
U.S.C. § 982(a)(1) and Rule 32.2(a), Federal Rules of Criminal
Procedure.
United States v. Ranes, No. 3:06-cr-00041 (D. Alaska), ECF No. 284.
Ultimately, Applicant pled guilty to Counts 1 (marijuana importation
conspiracy), 119 (money laundering), and 137 (international money laundering).
(Id., ECF No. 719 and 721). A few months later, Applicant moved to withdraw
his guilty plea (Id. at ECF No. 754), but the District Court denied the motion (Id.
at ECF No. 817). On June 5, 2008, Judge Ralph R. Beistline of the United
States District Court for the District of Alaska sentenced Applicant to 360
months imprisonment and 5 years of supervised release. (Id. at ECF No. 849).
Applicant filed a timely notice of appeal with the Ninth Circuit asserting
two claims: (1) the district court erred in denying his motion to withdraw his
guilty plea; and (2) ineffective assistance of counsel. The Ninth Circuit rejected
both claims on August 31, 2009. United States v. Ranes, 344 Fed. App’x. 364

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(9th Cir. 2009). Further, on November 9, 2009, the Ninth Circuit denied
Applicant’s Petition for a Panel Rehearing and Petition for Rehearing en banc.
United States v. Ranes, No. 3:06-cr-00041 (D. Alaska), ECF No. 1032.
On February 15, 2011, Applicant filed pro se a Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 in the District Court for
the District of Alaska. Id., ECF No. 1043. He raised one issue in his § 2255
motion: his guilty plea was unknowing and unintelligent due to ineffective
assistance of counsel. He was subsequently appointed counsel, who filed an
amended § 2255 motion asserting the same one claim but attaching a sworn
affidavit from Mr. Ranes. Id., ECF No. 1066. On January 19, 2012, the district
court denied Applicant’s § 2255 motion. Id., ECF No. 1083. Applicant’s habeas
counsel filed a timely notice of appeal. Id., ECF No. 1083. However, neither the
district court nor the court of appeals granted a certificate of appealability. Id.,
ECF Nos. 1095 and 1109.
The instant action was commenced on October 29, 2015, and Applicant asserts
three claims in support of his § 2241 application: (1) the “savings clause” of 28 U.S.C.
§ 2255(e) is unconstitutionally vague; (2) alternatively, § 2255 is “inadequate or
ineffective” when a federal prisoner is denied § 2255 relief as a result of ineffective
assistance of habeas counsel; and (3) Ranes’ substantive claim for relief -- § 2255
counsel provided ineffective assistance resulting in the denial of Ranes’ § 2255 motion
wherein Ranes claimed that his guilty plea was not knowingly and intelligently entered
into. (ECF No. 1).

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II. Analysis
A. Constitutionality of Section 2255(e)
Applicant argues that the savings clause of 28 U.S.C. § 2255(e) is
unconstitutionally vague. A federal prisoner may challenge the legality of his underlying
conviction by filing a habeas petition under 28 U.S.C. § 2255. Brace v. United States,
634 F.3d 1167, 119 (10th Cir. 2011). A § 2255 motion must be filed with the sentencing
court. See 28 U.S.C. § 2255(a). Applicant was sentenced in the District of Alaska and
he has pursued a § 2255 motion there, but it was denied. Prisoners are usually given
only one chance to have a § 2255 petition considered on the merits. See 28 U.S.C. §
2244; Prost v. Anderson, 636 F.3d 578, 586 (10th Cir.2011). One of the main purposes
in enacting the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), was to
ensure a greater degree of finality for convictions.
However, section 2255(e) provides an additional opportunity for federal prisoners
to challenge a conviction in certain limited circumstances. Section 2255(e) is the socalled “savings clause” of § 2255, which allows a federal prisoner to file a § 2241
application to challenge the legality of his conviction 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)). Section 2241 applications must be made in
the district where the applicant is confined. See Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996).
In this case, Applicant is challenging the legality of his conviction by pursuing a
§ 2241 application in this court because although he was convicted in the District of

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Alaska, he is currently incarcerated in Colorado. See Atkins v. Garcia, 816 F. Supp.2d
1108, 1110 (D. Colo. 2011). The only way to proceed with a § 2241 application to
challenge a conviction is through the § 2255(e) savings clause.
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.”) .
In Prost, the Court stated the question is “whether a petitioner's argument
challenging the legality of his detention could have been tested in an initial § 2255
motion.” 636 F.3d at 584. Section 2255 is not considered inadequate or ineffective
merely because the result of a § 2255 petition is unsuccessful. Prost, 636 F.3d at 584–
85. “[T]he mere fact [the movant] is precluded from filing a second § 2255 petition does
not establish that the remedy in § 2255 is inadequate.” Caravalho, 177 F.3d at 1179.
Instead, the opportunity to seek a § 2255 remedy must be deemed “genuinely absent”
before a petitioner may properly file a § 2241 petition. Prost, 636 F.3d at 588. For
example, the savings clause may be met when the original sentencing court has been
abolished or dissolved and the petitioner has nowhere to file a § 2255 petition. See
Prost, 636 F.3d at 588; see also Caravalho, 177 F.3d at 1178 (listing cases).

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While the Tenth Circuit has specifically stated that “a showing of actual
innocence is irrelevant,” it has raised and left open the question that there might be a
case where an applicant should be allowed to “proceed to § 2241 when the application
of § 2255(h)’s bar against a second or successive motion for collateral review would
seriously threaten to render the § 2255 remedial process unconstitutional.” Prost, 636
F.3d at 593 (citing Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997)
(savings clause may be triggered where “the failure to allow for collateral review would
raise serious constitutional questions”); In re Dorsainvil, 119 F.3d 245, 248 (3d Cir.
1997)(“Were no other avenue of judicial review available for a party who claims that
s/he is factually or legally innocent as a result of a previously unavailable statutory
interpretation, we would be faced with a thorny constitutional issue.”)). Further, the
Tenth Circuit has recognized that “a fundamental miscarriage of justice” exception
allows courts to grant federal habeas relief in spite of procedural bars—such as the bar
on second and successive § 2255 motions—where a constitutional violation "has
probably resulted in the conviction of one who is actually innocent." Lee v. Oliver, No.
14-1287, 574 Fed. Appx. 846, 846-48 (10th Cir. Sept. 3, 2014) (citations omitted); Brown
v. Berkebile, 572 Fed. Appx. 605, 608-09 (10th Cir. 2014); Murray v. Carrier, 477 U.S.
478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) Herrera v. Collins, 506 U.S. 390,
404, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) ("[H]abeas courts [have discretion] to see
that federal constitutional errors do not result in the incarceration of innocent
persons.")). However, when assessing the fundamental miscarriage of justice
exception, the Tenth Circuit has held that the prisoner must show, under Prost's savings
clause test, that the actual innocence claims in the § 2241 application could not have

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been tested in an initial § 2255 motion. Lee, 636 F.3d at 584; Brown v. Berkebile, 572
Fed. Appx. 605, 608-09 (10th Cir. 2014).
The petitioner bears the burden of showing that the opportunity to seek a remedy
under § 2255 is inadequate or ineffective. Brace, 634 F.3d at 1169. If the petitioner fails
to do so, the court lacks jurisdiction to consider the petition on the merits. See id. at
1170.
Here, Applicant is apparently aware of the Tenth Circuit’s narrow reading of the
savings clause and, therefore, he is trying to get around the binding Prost precedent by
arguing that the savings clause is unconstitutionally vague. Applicant discusses the
splits among the circuits in their differing interpretations of the savings clause. (ECF No.
2 at 4-10). Then, Applicant argues that the recent United States Supreme Court holding
of Johnson v. United States, 135 S. Ct. 2551 (2015) reinforces the unconstitutionality of
the savings clause. (Id. at 12). In Johnson, the Supreme Court declared the “residual
clause” of the Armed Career Criminal Act (ACCA) unconstitutionally vague. According
to Applicant, the Johnson court established the following criteria for gauging a statute’s
vagueness:
(1) “repeated attempts and repeated failures to craft a principled and objective
standard;”
(2) “pervasive disagreement about the nature of the inquiry one is supposed to
conduct and the kinds of factors one is supposed to consider;” and
(3) “indeterminacy” that leaves “grave uncertainty” about how to apply a provision.
(ECF No. 2 at 12) (citing Johnson 135 S. Ct. at 2558, 2560).
Applicant argues there is no practical, legal difference with the unconstitutional
vagueness the Supreme Court found in the ACCA “residual clause” and the vague

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“inadequate or ineffective” language found in § 2255(e). (ECF No. 2 at 12-13). The
Court is not persuaded.
The Johnson court was analyzing whether a criminal statute was constitutionally
vague, which is far different than the habeas review statute at issue here. The Johnson
Court noted that Supreme Court precedent establishes that the Government violates the
Fifth Amendment due process clause “by taking away someone’s life, liberty, or
property under a criminal law so vague that it fails to give ordinary people fair notice of
the conduct it punishes, or so standardless that it invites arbitrary enforcement.”
Johnson, 135 S. Ct. at 2556 (citation omitted). These principles apply to criminal
statutes and to statutes fixing sentences. Id. at 2557 (citation omitted).
In this case, however, there is not a criminal or sentencing statute at issue.
Rather, it is a habeas statute, where the applicant has already been convicted and
sentenced under separate – arguably not vague – statutes. Applicant provides no
caselaw or support for extending such principles to the habeas statute. Indeed, the
habeas review statute does not “take away” someone’s life, liberty, or property, but
instead provides an opportunity for an additional review of a final judgment of
conviction. The savings clause purpose is to ensure that there is an “adequate and
effective” opportunity for that additional review. Due process does not establish a right
to collateral review and relief of a final judgment of conviction. United States v. Surratt,
797 F.3d 240, 266-267 (4th Cir. 2015)(citing United States v. MacCollom, 426 U.S. 317,
323, 96 S. Ct. 2086, 48 L. Ed. 2d 666 (1976) (plurality opinion) ("The Due Process
Clause of the Fifth Amendment . . . certainly does not establish any right to collaterally
attack a final judgment of conviction."); Herrera v. Collins, 506 U.S. 390, 399, 113 S. Ct.

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853, 122 L. Ed. 2d 203 (1993); cf. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S. Ct.
1990, 95 L. Ed. 2d 539 (1987)). At some point, a final judgment of conviction must
become final.
Also noteworthy is that Applicant does not assert an actual innocence claim or
argue that there is a “fundamental miscarriage of justice,” which the Tenth Circuit has
alluded might present potential constitutional concerns. Prost, 636 F.3d at 593; Lee, 574
App’x at 846-48. As such, the circumstances of Applicant’s case fail to demonstrate
that the savings clause is unconstitutionally vague.
B.

Ineffective Assistance of Habeas Counsel

Next, Applicant argues that he should be able to challenge his conviction under
the savings clause because he received ineffective assistance of habeas counsel,
which made relief under § 2255 “inadequate or ineffective.” The Court disagrees.
For cases within this Circuit, “Prost establishes a straightforward test for
determining when the savings clause applies: a prisoner can only bring a petition under
§ 2241 when his arguments ‘could [not] have been tested in an initial § 2255 motion.”
Barnett v. Maye, 602 Fed. App’x 717, 719 (10th Cir. 2015)(citation omitted). It is entirely
clear that Applicant’s claim of ineffective assistance of counsel could have been tested
in his initial § 2255 motion because in fact, it was tested in his initial § 2255 motion.
Applicant asserted that ineffective assistance of counsel resulted in him making an
unknowing and unintelligent guilty plea. See United States v. Ranes, No. 3:06-cr-00041
(D. Alaska), ECF Nos. 1043, 1066. Now, however, Applicant argues that because he
received ineffective assistance of habeas counsel, the § 2255 remedy was “inadequate
or ineffective.”

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In support of his argument that § 2255 relief is “inadequate or ineffective” when a
federal prisoner receives ineffective assistance of habeas counsel, he cites to two
Supreme Court cases that held ineffectiveness of state habeas counsel may excuse a
procedural default for an ineffective assistance of counsel claim in the context of federal
habeas corpus proceedings. (ECF No. 2 at 13-14 (citing Martinez v. Ryan, 132 S. Ct.
1309, 1320 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013)). The Martinez Court
held:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.
Martinez, 132 S. Ct. at 1320. The Trevino Court clarified that the Martinez rule also
applied to states in which it was “virtually impossible,” as a practical matter to assert an
ineffective assistance claim before collateral review. Trevino, 133 S. Ct. at 1915. The
Martinez case addressed circumstances in which ineffective assistance of counsel in a
state habeas proceeding may excuse a procedural bar to pursuing a federal habeas
claim. The Martinez Court wanted to ensure that prisoners have one opportunity to
present an ineffective assistance of trial counsel claim, whether it be on direct appeal,
collateral review, or federal habeas review. See Martinez, 132 S.Ct. at 1319-20.
However, the Court was careful not to hold that individuals have a constitutional right to
effective assistance of counsel in presenting the claim on collateral review. See id.; see
also Halvorsen v. Parker, 2012 U.S. Dist. LEXIS 164559, 8-9 (E.D. Ky. Nov. 19, 2012).
The Supreme Court characterized its decision in Martinez as an "equitable ruling," and

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not a constitutional one. Martinez, 132 S.Ct. at 1319; Buenrostro v. United States, 697
F.3d 1137, 1140 (9th Cir. 2012).
Unlike the applicants in Trevino and Martinez, Mr. Ranes’ ineffective assistance
of counsel claim was not denied as procedurally defaulted. Rather, a federal court
considered and denied his ineffective assistance of counsel claim on the merits. As
such, the circumstances are markedly different than those of the state prisoners in
Trevino and Martinez. See United States v. Sua, 2013 U.S. Dist. LEXIS 103732 (D.
Haw. July 24, 2013) (“The Martinez case, moreover, does not apply to federal
convictions, such as Defendant Sua's conviction here.”). Furthermore, the Martinez
court specifically characterized its ruling as “equitable,” and did not create a
constitutional right to effective assistance of habeas counsel. Martinez, 132 S.Ct. at
1319; Buenrostro, 697 F.3d at 1140. Therefore, the holdings of Martinez and Trevino do
not apply to this case.
This Court is bound by the Tenth Circuit’s binding precedent in Prost. See United
States v. Spedalieri, 910 F.2d 707, 709 (10th Cir. 1990) (“A district court must follow the
precedent of this circuit, regardless of its views concerning the advantages of the
precedent of our sister circuits.”). Under Prost, the Court finds that Mr. Ranes has
failed to satisfy his burden of demonstrating that the remedy available pursuant to
§ 2255 in the sentencing court was inadequate or ineffective. As a result, the application
will be dismissed for lack of statutory jurisdiction. See Abernathy v. Wandes, 713 F.3d
538, 557-58 (10th Cir. 2013).

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III. Conclusion
Applicant has failed to demonstrate that he lacks an adequate and effective
remedy under § 2255 and, therefore, this court lacks jurisdiction. See Abernathy v.
Wandes, 713 F.3d 538, 557-58 (10th Cir. 2013). As a result, the § 2241 Application will
be dismissed without prejudice for lack of statutory jurisdiction.
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 without
prejudice for lack of statutory jurisdiction because Applicant fails to demonstrate that his
remedy under 28 U.S.C. § 2255 is inadequate or ineffective. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.

DATED at Denver, Colorado, this

4th

day of

December

, 2015.

BY THE COURT:
s/Lewis T. Babcock____________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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