Burnette v. Cozza Rhodes

Filing 7

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/23/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02478-LTB
SOLOMON EDDIE BURNETTE,
Applicant,
v.
T.K. COZZA RHODES,
Respondent.

ORDER OF DISMISSAL

Applicant, Solomon Eddie Burnette, is a prisoner in the custody of the Federal
Bureau of Prisons (BOP) who currently is incarcerated at the United States Penitentiary in
Florence, Colorado. Mr. Burnette has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging the validity of his conviction
and sentence.
The Court must construe the habeas corpus application liberally because Mr.
Burnette 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 should
not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. The Court may take
judicial notice of its own records and files that are part of the Court’s public records. See
St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979).
On November 12, 2015, Magistrate Judge Gordon P. Gallagher ordered Applicant
show cause in writing within thirty (30) days from the date of this order why the habeas

corpus application should not be denied because he had an adequate and effective remedy
pursuant to 28 U.S.C. § 2255. Mr. Burnette failed to respond to that order. For the reasons
stated below, this action will be dismissed.
Mr. Burnette was convicted, in the United States District Court for the Western
District of Tennessee on four counts of drug related charges. See United States v.
Burnette, No 02:95-cr-20082. As noted above, Mr. Burnette is challenging the validity of
his conviction and sentence in this habeas corpus action. Even if his allegations were
sufficient, they relate to his conviction and sentencing, not the execution of his sentence.
These claims may not be raised in a habeas corpus action under § 2241.
The purposes of an application for a writ of habeas corpus pursuant to § 2241 and
a motion pursuant to § 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 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. Burnette 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.”
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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. Burnette’s claim 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.
The Court of Appeals for the Third Circuit explained the limited nature of § 2241
relief in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). In that case, the Petitioner, Dorsainvil,
had been convicted of a violation of 18 U.S.C. § 924(c)(1), which imposes punishment upon
a person who "during and in relation to any ... drug trafficking crime ... uses or carries a
firearm." At his trial, Dorsainvil testified that he possessed the gun but denied that the gun
was related in any way to the drug transaction, stating that he bought it for protection while
living in Florida. The jury convicted him on all counts. Thereafter in 1993, Dorsainvil
unsuccessfully sought collateral relief from his sentence under 28 U .S.C. § 2255 on the
grounds of ineffective assistance of counsel and double jeopardy. In December of 1995,
the Supreme Court decided Bailey v. United States, 516 U.S. 137, 150 (1995), wherein it
held that the "use" language in 21 U.S.C. § 924 required the government to prove that the
defendant "actively employed the firearm during and in relation to the predicate crime."
Sometime in the summer of 1996, Dorsainvil filed a second § 2255 petition in the district
court. In his second 2255 motion, Dorsainvil asserted that there was insufficient evidence
to show that he actively employed a firearm in relation to a drug trafficking crime and, as
a consequence, his conviction under 21 U.S.C. § 924 was unlawful.
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The district court ruled that it did not have jurisdiction to address Dorsainvil's second
2255 motion due to the new "gate-keeping" provisions enacted in the AEDPA. In this
regard, Congress enacted "gatekeeping" provisions in the AEDPA to prohibit prisoners from
filing successive actions in federal court for collateral relief. The new provisions require a
prisoner to obtain a certification from a three judge panel of the appropriate court of
appeals before a successive motion for collateral relief may be considered by a federal
district court.
With respect to federal prisoners such as Applicant, Congress amended 28 U.S.C.
§ 2255, in pertinent part, as follows.
A second or successive motion must be certified as provided in section 2244
by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255.
The Court of Appeals for the Third Circuit concluded that Dorsainvil could not file a
second 2255 motion under the gate-keeping provisions because his claim did not rely on
newly-discovered evidence and the Bailey decision did not establish a new rule of
constitutional law; rather, it merely interpreted existing law. Because Dorsainvil was
precluded from raising his Bailey claim in a second 2255 motion, his remedy under § 2255
was "ineffective or inadequate." Accordingly, the court of appeals concluded that a
petitioner in Dorsainvil's uncommon situation may resort to the writ of habeas corpus under
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28 U.S.C. § 2241. Dorsainvil, 119 F.3d at 248. The court noted that relief under § 2241
was proper in this situation to avoid a miscarriage of justice because otherwise, a prisoner
would not have an opportunity to challenge his conviction and, as a result, would be
punished "for an act that the law does not make criminal." Id. at 251.
Applicant, however, has not presented any basis that would allow him to proceed
under 28 U.S.C. § 2241. Specifically, Mr. Burnette fails to demonstrate that the remedy
available to him pursuant to § 2255 in the sentencing court was inadequate or ineffective.
The fact that Mr. Burnette may be time-barred from filing a § 2255 motion in the sentencing
court is not enough, by itself, to demonstrate the remedy provided in § 2255 is inadequate
or ineffective. See Caravalho, 177 F.3d at 1178; see also United States v. Montano, 442
F. App’x 412, 413 (10th Cir. 2011) (concluding that § 2255 is not inadequate or ineffective
for purposes of filing a writ of audita querela merely because relief under § 2255 may be
time-barred). Therefore, Mr. Burnette will be ordered to show cause why this action should
not be denied because he had an adequate and effective remedy pursuant to § 2255 in the
sentencing court. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 is DENIED because Applicant had an adequate and effective remedy pursuant to
28 U.S.C. § 2255. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on
appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 23rd day of December, 2015.
BY THE COURT:

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

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