Garcia v. Maye

Filing 3

MEMORANDUM AND ORDER ENTERED: Petitioner is assessed the filing fee of $5.00 and must either submit this fee in full within ten (10) days of this Order or alternatively a proper motion to proceed in forma pauperis upon court-approved forms with a certified statement of his current institutional account balance. This action is dismissed without prejudice for lack of jurisdiction. Signed by Senior District Judge Richard D. Rogers on 06/16/15. Mailed to pro se party Saul Garcia by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAUL GARCIA,
Petitioner,
v.

CASE NO.

14-3180-RDR

CLAUDE MAYE, Warden,
Respondent.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed
pursuant to 28 U.S.C. § 2241 by Mr. Garcia while he was confined
at

the

United

States

Penitentiary,

Kansas.1

Leavenworth,

Having examined the materials filed, the court finds that this
is

Mr.

Garcia’s

second

attempt

to

challenge

his

federal

conviction or sentence in a § 2241 petition in the district of
his confinement rather than by motion in the sentencing court,
which is the exclusive remedy for such claims.

Accordingly, the

court dismisses this petition for lack of jurisdiction.
BACKGROUND FACTS AND CLAIMS
The court takes judicial notice of the records in Garcia v.
United States Attorney General, et al., Case No. 10-3147-RDR
(D.Kan. Nov. 12, 2010), and written opinions in Mr. Garcia’s
criminal case.

1

The following background facts are garnered from

He has since
Herlong, California.

notified

the

court

1

of

his

transfer

to

Herlong-FCI,

these records.
District

Mr. Garcia was convicted in the United States

Court

conspiracy

to

for

the

Southern

distribute

in

District

excess

of

of

Indiana

500

of

grams

of

methamphetamine in violation of 28 U.S.C. §§ 841(a)(1) and 846.
(USA v. Garcia, 07-cr-0012-09 (S.D. Ind.)).

He was found guilty

by a jury and sentenced in 2007 to 380 months in prison.

His

direct appeal to the Seventh Circuit Court of Appeals was denied
United States V. Garcia, 580 F.3d 528, 542-43 (7th Cir.

in 2009.

2009), cert. denied, Decker v. U.S., 559 U.S. 957 (2010).

In

2010, Mr. Garcia filed a § 2241 petition in the United States
District

Court

for

the

District

of

Columbia,

which

was

transferred to this court and ultimately dismissed for lack of
jurisdiction.

See Garcia, Case No. 10-3147-RDR.

Petitioner claims

that

he is entitled to relief on the

following grounds: (1) his counsel filed a motion for leave to
withdraw “pursuant to Anders v. California” stating that “upon
review

of

arguments
leaving

the
to

Mr.

record”
raise

Garcia

on

he

“could

appeal”

without

not

and

find

was

counsel;

any

allowed

(2)

his

non-frivolous
to

withdraw

counsel

was

ineffective for failing to file an appeal and he was blocked
from

appellate

review;

(3)

there

was

no

conspiracy;

(4)

he

“merely sold a jet ski, not a jet;” (5) he is “entitled to
relief based upon due process . . . under the Fifth Amendment
and Supreme Court rulings in Apprendi v. New Jersey” and Alleyne
2

v.

United

States;

and

(6)

Alleyne

should

retroactively apply on collateral review.
“multiplicitous indictment.”
none

of

these

claims

is

be

found

to

He also refers to a

The court notes in passing that
supported

with

more

than

vague

allegations and conclusory statements.
STANDARDS
Mr. Garcia was informed by this court in his prior § 2241
action regarding the relevant provisions of 28 U.S.C. § 2255.

§

2255(a) 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 law 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.

Subsection (e) of Section 2255 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.
DISCUSSION
The petition filed in this case is deficient in several
respects.

First, it is not upon court-approved forms.

Mr.

Garcia is obligated, despite his pro se status, to comply with

3

local court rules.

Second, petitioner has made no attempt to

satisfy the statutory filing fee prerequisites.

He has neither

paid the filing fee nor submitted any type of motion to proceed
in

forma

pauperis

(IFP).

An

IFP

submitted upon court-approved forms.

motion

must

likewise

be

Furthermore, an IFP motion

must contain an affidavit and be accompanied by an institutional
account statement showing at least a current balance.
§ 1915.

Mr. Garcia was previously made aware of these statutory

prerequisites.
current

He does not satisfy the prerequisite to provide

financial

economic

status

Nor

he

is

28 U.S.C.

and

inmate

remains

entitled

account

unchanged

to

a

by

from

waiver

stating

original

of

the

that

“his

conviction.”

statutory

fee

prerequisites by his request “to proceed in forma pauperis as a
continuation of” his criminal case or his unexplained citation
to “Rule 60(b) et seq. (Error Coram Nobis).”2
Furthermore,

petitioner’s

claims

in

the

instant

§

2241

petition, like those in his prior petition, are clearly attacks
upon his federal conviction or sentence.

As the court ruled in

Mr. Garcia’s prior action, this court lacks jurisdiction under §
2241 to hear such claims.
that

once

a

direct

He was advised in his prior action

appeal

has

been

completed,

a

federal

prisoner’s exclusive remedy for challenges to his conviction or
2

Had Mr. Garcia filed the more appropriate § 2255 motion in his criminal
case instead of this § 2241 habeas petition in the district of his
confinement, he might have avoided a filing fee.

4

sentence is a § 2255 motion filed in the sentencing court:
A motion under § 2255 is the “exclusive remedy” for
challenging a federal conviction and sentence unless
there is a showing that the remedy is inadequate or
ineffective.
See 28 U.S.C. § 2255; Haugh v. Booker,
210 F.3d 1147, 1149 (10th Cir. 2000).
Garcia, Case No. 10-3147-RDR (Doc. 5) at 3-4.
not sentenced in this court.

Mr. Garcia was

He was further informed of the

long-standing holding that:
A § 2241 Petition “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), cert. denied, 377 U.S. 980 (1964).
Id.; Williams v. U.S., 323 F.2d 672, 673 (10th Cir. 1963), cert.
denied, 377 U.S. 980 (1964); see also Johnson v. Taylor, 347
F.2d 365, 366 (10th Cir. 1965).
Mr. Garcia believes he is entitled to review by this court
under § 2241 by virtue of the “savings clause” exception in §
2255(e).

The Tenth Circuit Court of Appeals has explained this

exception:
Following AEDPA’s enactment, federal prisoners who are
barred from bringing second or successive § 2255
motions may still be able to petition for habeas
relief under § 2241 through the mechanism of §
2255(e)’s savings clause. “To fall within the ambit of
[the] savings clause and so proceed to § 2241, a
prisoner must show that ‘the remedy by motion [under §
2255] is inadequate or ineffective to test the
legality of his detention.’ Prost, [v. Anderson,] 636
F.3d [578, 581 (10th Cir.), cert. denied, 132 s.Ct.
1001 (2012)](quoting 28 U.S.C. § 2255(e)).
Section
2255, however, has been found to be “inadequate or
ineffective”
only
in
“extremely
limited
5

circumstances.”
Caravalho v. Pugh, 177 F.3d 1177,
1178 (10th Cir. 1999); see Brace [v. United States,
634 F.3d 1167,] 1169 [10th Cir. 2011](stating that “ §
2255 will rarely be an inadequate or ineffective
remedy to challenge a conviction”). In Prost, we set
forth our test: we ask “whether a petitioner’s
argument challenging the legality of his detention
could have been tested in an initial § 2255 motion. If
the answer is yes, then the petitioner may not resort
to the savings clause and § 2241.” 636 F.3d at 584.
Abernathy v. Wandes, 713 F.3d 538, 547 (10th Cir. 2013).
the

petitioner’s

burden

to

inadequate or ineffective.

show

that

the

§

2255

It is

remedy

is

Caravalho, 177 F.3d at 1178; see

also Abernathy, 713 F.3d at 549 (“It is Mr. Abernathy’s burden
to show that he meets § 2255(e)’s savings clause.”).
savings

clause

doesn’t

guarantee

results,

only

“[T]he

process.”

Abernathy, 713 F.3d at 550 (quoting Prost, 636 F.3d at 590).

A

petitioner’s dissatisfaction or disagreement with the sentencing
court’s

decisions

on

claims

in

his

§

2255

motion

does

not

entitle him to raise the same claims in a § 2241 petition under
the

savings

clause.

In

fact,

even

a

district

or

appellate

court’s “erroneous decision on a § 2255 motion does not render
the § 2255 remedy inadequate or ineffective.”

Sines v. Wilner,

609 F.3d 1070, 1072–74 (10th Cir. 2010); Abernathy, 713 F.3d at
538 (citing 28 U.S.C. §§ 2241, 2255(e))(“The plain language of
the savings clause in statute governing motions to vacate, set
aside, or correct sentence does not authorize resort to federal

6

habeas relief simply because a court errs in rejecting a good
argument . . . .”).
Mr. Garcia attempts to invoke the savings clause by simply
stating that “[w]hen § 2255 is unavailable” or inadequate “or
[in]effective then the savings clause applies in order to avoid
a manifest miscarriage of justice.”

His mere recitation of

these legalistic phrases is wholly inadequate to satisfy his
burden.

He does not allege a single fact to establish that his

remedy under § 2255 was either unavailable or “inadequate or
ineffective.”

His formulaic recitation of the savings clause

test does not supply the necessary factual basis.
is

filled

claims.

only

with

arguments

on

the

merits

of

The petition
his

habeas

Moreover, petitioner makes no mention of his Motion to

Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. §
2255” filed in the sentencing court, which was denied.

See

Garcia v. U.S., 2013 WL 1703739 (S.D.Ind. Apr. 19, 2013).

The

written opinion of the sentencing court on that motion reflects
that Mr. Garcia was able to raise numerous claims testing the
legality of his confinement.

He alleges no facts to suggest

that the claims raised in this § 2241 petition could not have
been presented in that § 2255 proceeding.3

3

Likewise he alleges

Once a prisoner has utilized his § 2255 remedy, in order to raise the
claim in a subsequent § 2255 motion that he is entitled to habeas corpus
relief based on a “new rule of constitutional law,” he must seek
preauthorization from the appropriate Circuit Court of Appeals and must
qualify under the standards set forth in 28 U.S.C. 2255(h)(2). See 28 U.S.C.

7

no facts to support his assertion of miscarriage of justice.
The conclusion is inescapable that Mr. Garcia has not met his
burden

of

showing

that

his

§

2255

remedy

was

inadequate

or

ineffective.

He has thus failed to establish his entitlement to

petition

for

relief

under

2241

§

clause.”

from

“through

See

Prost,

his

the
636

federal

mechanism
F.3d

at

conviction
of

584

§
(If

or

2255(e)’s
a

sentence
savings

“petitioner’s

argument challenging the legality of his detention could have
been tested in an initial § 2255 motion,” then “the petitioner
may not resort to the savings clause and § 2241”); Abernathy,
713 F.3d at 545.
As noted, neither a petitioner’s disappointment with the
sentencing court’s decision on his § 2255 motion nor even an
erroneous

decision

by

the

invoke the savings clause.

sentencing

court

entitles

him

to

Moreover, petitioner’s additional

bald assertions of jurisdiction “with 28 U.S.C. § 1651 and Rule
60(b),” “error coram nobis”, “error coram nobis” and “all writs”
are not supported by any facts or legal theory and fail to
establish

an

alternative

basis

for

this

court’s

jurisdiction

over his claims.
Finally, the court notes that petitioner’s challenges to
his

federal

successive.”

conviction

or

sentence

are

clearly

“second

and

As noted, Mr. Garcia filed a prior § 2241 petition

§ 2244.
His inability to meet the standards for filing a second and
successive § 2255 motion does not establish that the remedy is ineffective.

8

in 2010 that was dismissed and a § 2255 motion in 2013 that was
considered and denied.
significant

statutory

Section 2255 motions are subject to two
“gate-keeping”

restrictions:

a

one-year

statute of limitations in § 2255(f); and a ban on second and
successive motions in § 2255(e).

A habeas petitioner may not

avoid either restriction by simply recasting his claims as under
§ 2241.

The mere fact that a federal prisoner may be precluded

from filing a § 2255 motion by either the second and successive
provision or the one-year time limitation does not render his
claims cognizable under § 2241.

The sentencing court’s or the

appropriate appellate court’s refusal to consider claims that
are

second

and

successive

has

expressly

been

held

not

to

establish that the § 2255 remedy was inadequate or ineffective.
Sines, 609 F.3d at 1072–74.
The court finds it would not serve the interests of justice
to construe this § 2241 petition as a § 2255 motion and transfer
it to the Court of Appeals for the Seventh Circuit for its
consideration of preauthorization.
IT IS THEREFORE BY THE COURT ORDERED that petitioner is
hereby assessed the filing fee of $5.00 and must either submit
this

fee

in

full

within

ten

(10)

days

of

this

Order

or

alternatively a proper motion to proceed in forma pauperis upon
court-approved forms with a certified statement of his current
institutional account balance.
9

IT IS FURTHER ORDERED that this action is dismissed without
prejudice for lack of jurisdiction.
The clerk is directed to send IFP forms to petitioner.
IT IS SO ORDERED.
DATED:

This 16th day of June, 2015, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

10