McCoy v. Maye

Filing 3

MEMORANDUM AND ORDER dismissing this action for lack of jurisdiction and denying all relief without prejudice. Signed by District Judge Richard D. Rogers on 1/30/2015. Mailed to pro se party Michael D. McCoy by regular mail. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL D. McCOY,
Petitioner,
v.
CASE NO.

14-3104-RDR

CLAUDE MAYE, Warden,
USP Leavenworth,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas.

The filing fee has been paid.

Having

considered all materials filed, the court finds that the claims
raised herein are challenges to petitioner’s federal convictions
entered in another federal district court, and that this court lacks
jurisdiction to hear these claims under § 2241.

Accordingly, this

action is dismissed.

FACTUAL BACKGROUND, ALLEGATIONS, AND CLAIMS
Mr. McCoy alleges that in 1992 he was convicted by a jury in
the United States District Court for the Southern District of Indiana
of four counts of robbery and armed robbery and three counts of
firearms violations and sentenced to a total term of 45 years.

He

directly appealed, and the Seventh Circuit Court of Appeals affirmed.
United States v. McCoy, 8 F.3d 495 (7th Cir. 1993).
1

Mr. McCoy filed

a motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 in the sentencing court, which was denied in 1997.

He

generally alleges that he has diligently pursued his remedies “to
no avail.”

However, his specific allegations show only that he

directly appealed to the Circuit and filed a first § 2255 motion that
was denied.1
Petitioner discusses changes that have occurred in relevant law
“over the past twenty-plus years” and claims that he is entitled to
relief based upon new law.

For example, he claims that the “second

or subsequent provision of 924(c) that was used to enhance his
sentence” is an “element” under the “Alleyne Doctrine” and “the jury
never found him guilty of second or subsequent nor was it included
in the indictment.”

In Alleyne v. United States, ––– U.S.––––, 133

S.Ct. 2151 (June 17, 2013), the United States Supreme Court overruled
prior Supreme Court case law and held that under the Sixth Amendment:
Any fact that, by law, increases the penalty for a crime
is an “element” that must be submitted to the jury and found
beyond a reasonable doubt. Mandatory minimum sentences
increase the penalty for a crime. It follows, then, that
any fact that increases the mandatory minimum is an
“element” that must be submitted to the jury.
Id. at 2155 (citation omitted).

Petitioner’s claims are undoubtedly

challenges to his convictions or sentence entered in the District
of Indiana.
1

The court declines to construe this petition as one brought pursuant to §
2255 and transfer it to the sentencing court because petitioner is required to
obtain preauthorization from the Seventh Circuit in order to file a successive
motion in the federal district court. See Boyce v. Berkebile, ___ Fed.Appx.___
(10th Cir. Jan. 26, 2015).

2

LEGAL STANDARDS
It is well-settled that a motion under § 2255, which must be
filed in the district court that imposed sentence, is the “exclusive
remedy” for challenging a conviction or sentence unless there is a
showing that the remedy is inadequate or ineffective.

See 28 U.S.C.

§ 2255;2 Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Haugh
v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000).
is

inadequate

circumstances.”

or

ineffective

only

in

The § 2255 remedy

“extremely

limited

Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.

1999).
A § 2241 petition has a distinct purpose from a § 2255 motion
and attacks the execution of a sentence rather than its validity.
Claims appropriately brought under § 2241 include challenges to
sentence or good time credit calculations and parole decisions by
U.S. Bureau of Prison’s officials.
2

A § 2241 petition “is not an

28 U.S.C. § 2255 pertinently provides:
A prisoner in custody under sentence of a (federal) court . . . claiming
the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States . . .
or is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.

Id.

Section 2255 further provides:
An application for writ of habeas corpus in behalf of a prisoner who
is authorized to apply for relief by motion pursuant to this section,
shall not be entertained if it appears that the applicant has failed
to apply for relief, by motion, to the court which sentenced him .
. . unless it also appears that the remedy by motion is inadequate
or ineffective to test the legality of his detention.

Id.

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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),
cert. denied, 377 U.S. 980 (1964).

“A remedy is available under §

2241 only if a claim procedurally could not have been raised at all
via § 2255, such as when the original sentencing court has been
dissolved or is unresponsive.

Boyce v. Berkebile, ___Fed.Appx.___,

2015 WL 306733, at *1 (10th Cir. Jan. 26, 2015)(citing Caravalho, 177
F.3d at 1178); Cleaver v. Maye, 773 F.3d 230, 232 (10th Cir.
2014)(citing Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011)).
This narrow exception is often referred to as the “savings clause.”
The question is “whether a petitioner’s argument challenging the
legality of his detention could have been tested in an initial § 2255
motion.”

Id. (citing Prost, 636 F.3d at 584).

“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).

Id. at 233 (citing

As petitioner acknowledges, he bears the

burden of showing that his § 2255 remedy is inadequate or ineffective.
Prost, 636 F.3d at 584.
“Prisoners are usually given only one chance to have a § 2255
petition considered on the merits.”

Cleaver, 773 F.3d at 232.

However, second or successive § 2255 petition are allowed under
certain circumstances.

Specific procedures must be followed before

successive challenges to a federal sentence or conviction may be
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filed in a federal district court.

28 U.S.C. § 2244(b)(3)(A)

provides:
Before a second or successive application permitted by
this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application.
Id.

28 U.S.C. § 2255(h) additionally provides:
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.

Id.

It is well-settled that the fact that a federal inmate may be

precluded from filing a second and successive § 2255 motion by
application of the above provisions does not establish that the
remedy is ineffective.

See Bustillo v. Hood, 168 Fed.Appx. 255, 256

(10th Cir.), cert. denied, 547 U.S. 1159 (2006)(citing Caravalho,
177 F.3d at 1179)).

Not even an erroneous decision on a § 2255 motion

renders the § 2255 remedy ineffective, as it can be appealed.

See

Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010), cert. denied,
131 S.Ct. 997 (2011).

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DISCUSSION
Mr.

McCoy

does

not

allege

that

he

has

already

sought

authorization from the Seventh Circuit to file a second and
successive § 2255 motion.

He argues instead that his first § 2255

remedy was ineffective because Alleyne and other law, which he
believes clearly established the illegality of his conviction or
sentence, did not exist at the time of his direct appeal and first
§ 2255 motion.

However, the remedy under § 2255 is adequate as long

as the movant’s “argument challenging the legality of his detention
could have been tested” in a § 2255.

Under Abernathy v. Wandes, 713

F.3d 538 (10th Cir. 2013), the court does not look to the likelihood
of success of a claim because the “inadequate or ineffective” test
“doesn’t guarantee results, only process.”

Id. at 548.

Thus,

petitioner’s assumption that his claim would have been denied under
the law prior to Allenye does not show that his § 2255 remedy was
inadequate or ineffective.
Furthermore, even if the Seventh Circuit has already denied Mr.
McCoy authorization to file a second and successive § 2255 motion,
this circumstance did not render his § 2255 remedy ineffective and
render him entitled to challenge his conviction in this § 2241 motion.
Petitioner claims that he is entitled to relief under Alleyne and
other court decisions and appears to claim that his 2255 remedy is
ineffective because Alleyne was not decided until after the denial
of his first 2255 motion.

However, the claim that his sentence is
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illegal under “the Alleyne Doctrine” is one that must be presented
to the sentencing court by § 2255 motion.

Since Mr. McCoy litigated

his first § 2255 motion and it was denied in 1997, then he must apply
to the Seventh Circuit Court of Appeals for authorization to file
a second and successive § 2255 motion.

A § 2241 petition in this

district is not an alternative remedy to his seeking relief under
§ 2255 either in the first instance or successively.
Petitioner’s allegations that he was sentenced under a statute
that did not apply to him and that Alleyne entitles him to relief
are legal arguments that do not qualify him for the “actual innocence
exception.”3

In any event, “a showing of actual innocence” is simply

“irrelevant to whether a remedy under § 2255 is inadequate or
ineffective.”

Boyce, 2015 WL 306733, *1 (citing Abernathy v.

Wandes, 713 F.3d 538, 546 n. 7 (10th Cir. 2013), cert denied, 134 S.Ct.
(2014)).
If Mr. McCoy has not yet sought Circuit authorization to file
a second and successive application, then he must follow that
procedure to have his claims considered.

See Boyce, 2015 WL 306733

at *2 (“The proper procedure for a federal prisoner who claims newly
discovered evidence demonstrates his innocence is to seek permission
to file a second or successive § 2255 motion in the sentencing court.
See § 2255(h).”)).

If he has sought authorization and was precluded

3

Petitioner’s argument citing Prost misreads that opinion. See id. (Failure
to obtain relief under § 2255 does not establish that the remedy is either
inadequate or ineffective). His argument of entitlement to § 2241 review based
on the Suspension Clause has no factual basis or legal merit.

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from bringing a successive petition, that decision did not render
his § 2255 remedy inadequate.
608 (10th Cir. 2014).

Brown v. Berkebile, 572 Fed.Appx. 605,

Under either possible scenario, petitioner has

failed to show that his § 2255 remedy was or is ineffective and thus
failed to establish that this court has jurisdiction hear his claims
under § 2241.

Haugh, 210 F.3d at 1150.4

Accordingly, this action

is dismissed for lack of jurisdiction.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed for lack of jurisdiction, and all relief is denied without
prejudice.
IT IS SO ORDERED.
DATED:

This 30th day of January, 2015, at Topeka, Kansas.

4

In In re Payne, the Tenth Circuit denied a federal inmate’s request for
authorization to file a second and successive 2255 motion to challenge his sentence
based on Alleyne. In re Payne, 733 F.3d 1027 (10th Cir. 2013). They noted that
authorization under § 2255(h)(2), will be granted “when a second or successive
§ 2255 claim is based on ‘a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.”
Id. at 1029. Contrary to plaintiff’s suggestion, the Tenth Circuit “agree(d) with
the Seventh Circuit that Alleyne actually does set forth ‘a new rule of
constitutional law.’” However, the two Circuits also agreed that “this new rule
of constitutional law has not ‘been made retroactive to cases on collateral review
by the Supreme Court.” Id. (citing see Simpson v. United States, 721 F.3d 875,
876 (7th Cir. 2013)). Plaintiff appears to urge this court to rule that Alleyne
applies retroactively; however, the declaration of retroactivity must come from
the Supreme Court. See Dodd v. United States, 545 U.S. 353 (2005); Tyler v. Cain,
533 U.S. 656, 662-63 (2001). The Tenth Circuit in Payne reasoned that “Alleyne
is an extension of Apprendi v. New Jersey, 530 U.S. 466” (2000), and the “Justices
have decided that other rules based on Apprendi do not apply retroactively on
collateral review.” Payne, 733 F.3d at 1030 (citing see Schriro v. Summerlin,
542 U.S. 348 (2004)). They emphasized that “[u]nless the Justices themselves
decide that Alleyne applies retroactively on collateral review, we cannot
authorize a successive collateral attack based on § 2255(h)(2).” Id. (citing
Simpson, 721 F.3d at 876); see generally Browning v. United States, 241 F.3d 1262,
1266 (10th Cir. 2001))(declining to authorize second or successive § 2255 motion
because Supreme Court has not made Apprendi retroactive)).

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s/RICHARD D. ROGERS
United States District Judge

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