DeWilliams v. Holder et al

Filing 9

MEMORANDUM AND ORDER ENTERED: This action is dismissed, without prejudice, for failure to state a claim, as frivolous and for lack of jurisdiction, and that all relief is denied. All pending motions 3 , 4 , 7 & 8 are denied as moot. Plaintif f Williams is provisionally granted leave to proceed without prepayment of fees conditioned upon his filing within thirty (30) days a properly completed and supported motion for leave to proceed without prepayment of fees on court-provided forms. Pl aintiff is assessed the filing fee of $350.00 to be paid through payments automatically deducted from his inmate trust fund account as authorized by 28 U.S.C. 1915(b)(2). Signed by Senior District Judge Richard D. Rogers on 07/02/15. Mailed to pro se party Gary DeWilliams by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GARY DeWILLIAMS,
Plaintiff,
v.
CASE NO.

14-3186-RDR

ERIC HOLDER, ATTORNEY
GENERAL, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed by Mr. DeWilliams
while

he

was

an

inmate

at

Leavenworth, Kansas (USPL).1

the

United

States

Penitentiary,

The court has examined the over 110

pages of pleadings and exhibits filed by Mr. DeWilliams
takes judicial notice of his prior related court actions.

and
This

is another in a long string of actions filed by Mr. DeWilliams
in an attempt
sentence.

to challenge his

1988

federal convictions

and

The court dismisses this complaint seeking mandamus

relief for failure to state a claim and as frivolous.

The court

declines to merely construe this action as a successive § 2255
motion due to Mr. DeWilliam’s abusive litigation history and his
insistence
relief.
another
1

that

he

seeks

something

other

than

habeas

corpus

In any event, even if this action were construed as
successive

and

Plaintiff has notified
Adelanto, California.

abusive
the

court

1

§

2255
of

his

motion,
transfer

it
to

would

be

Adelanto-FCI,

dismissed

for

lack

of

jurisdiction

because

this

is

not

the

sentencing court and there is no indication that Mr. DeWilliams
obtained

preauthorization

from

the

Appeals prior to filing this action.

Tenth

Circuit

Court

of

The court also requires

petitioner to satisfy the statutory filing fee prerequisites.
FILING FEE
With his complaint, plaintiff sent a letter to the clerk
stating he had begun the process for obtaining $5.00 for the
filing fee.

However, no fee was ever paid and plaintiff has not

submitted a motion to proceed without prepayment of fees.

The

statutory fee for filing a non-habeas civil action is $350.00,
28 U.S.C. § 1914, with an administrative fee of $50.00 added for
one who is not granted in forma pauperis (IFP) status.

The

statutory fee for filing a federal habeas corpus petition is
$5.00.2

Id.

A prisoner seeking to proceed without prepayment of

fees in a civil action must submit a proper IFP motion upon
court-approved forms that contains an affidavit and a statement
of the prisoner’s assets.

28 U.S.C. § 1915(a)(1).

Along with

this motion, the inmate must submit a certified copy of the
transactions

in

his

institutional

account

for

the

six-month

period immediately preceding the filing of the action.3

Mr.

2

In this court, no fee is charged for a § 2255 motion filed in the
inmate’s criminal case.
3

With a habeas petition, the inmate is required to submit an accounting
of the funds available to him in his institutional account.
D.Kan.Rule

2

DeWilliams has previously been advised of these prerequisites.
The court determines that the appropriate filing fee for
this case is that for a civil action and plaintiff is assessed
the full fee of $350.00.4

Mr. DeWilliams has filed prior § 2255

motions and § 2241 petitions that raised the same claims as are
presented herein, which were dismissed.

See United States v.

DeWilliams, 554 Fed.Appx. 752 (10th Cir. 2014)(Mr. DeWilliams
“has filed numerous unsuccessful challenges to his 1988 preGuidelines sentence.”)(citing In re deWilliams, No. 11-1575, at
2-4

(10th

filings).

Cir.

Jan.

26,

2012)(unpublished

order)(summarizing

He has been informed on numerous occasions by various

courts that his exclusive remedy for challenging his federal
9.1(g); see also Rule 3(a)(2) of the Rules Governing Section 2254 Cases in
the United States District Courts (habeas petition must be accompanied by “a
motion for leave to proceed in forma pauperis, the affidavit required by 28
U.S.C. § 1915, and a certificate from the warden or other appropriate officer
of the place of confinement showing the amount of money or securities that
the petitioner has in any account in the institution”).
4

The fee and three-strikes provisions of the Prisoner Litigation and
Reform Act (PLRA) apply to an action for mandamus relief.
Green v.
Nottingham, 90 F.3d 415, 417 (10th Cir. 1996); Childs v. Weinshienk, 320
Fed.Appx. 860, 863 (10th Cir. 2009); Schoenrogge v. Brownback, 255 Fed.Appx.
307, 309 (10th Cir. 2007). The Tenth Circuit reasoned in Green as follows:
Allowing prisoners to continue filing actions . . . merely by
framing pleadings as petitions for mandamus would allow a
loophole in the PLRA that Congress surely did not intend in its
stated goal of “discourag[ing] frivolous and abusive prison
lawsuits.”
The term “lawsuit” is commonly used to include “any
of various technical legal proceedings.”
In this context, a
mandamus proceeding is no more than a lawsuit against the
district court to compel it to act.
Based on the history and
purpose of the Prison Litigation Reform Act, we conclude that
petitions for a writ of mandamus are included within the meaning
of the term “civil action” as used in § 1915, [and] that the use
of the word “complaint” in § 1915(a)(2) . . . is broad enough to
include petitions for extraordinary writs, including mandamus.
Green, 90 F.3d at 417-18 (citation omitted).

3

conviction or sentence is a motion filed in the sentencing court
pursuant to 28 U.S.C. § 2255.

It is plain that he intentionally

filed this matter as a civil complaint for mandamus relief to
avoid

the

statutory

restrictions

that

have

habeas actions to be readily dismissed.
based

upon

Mr.

DeWilliams’

litigation

caused

his

prior

For these reasons and
history,

the

court

determines that his claims herein are not only successive but
abusive habeas claims that he again attempts to disguise as nonhabeas claims in this frivolous complaint for mandamus relief
against several “Defendants.”
Mr. DeWilliams
Proceed

without

is ordered to submit a proper Motion to

Prepayment

of

Fees

upon

court-approved

forms

accompanied by the requisite financial information in support.
He is provisionally granted leave to proceed without prepayment
of fees conditioned upon his submitting his complete and proper
Motion within the time prescribed by the court.
submit

a

proper

motion

or

fails

to

qualify

If he fails to
to

pay

the

fee

through automatic payments, the entire fee will be become due
and owing upon expiration of the prescribed time period.
BACKGROUND AND PROCEDURAL HISTORY
Mr. DeWilliams was convicted in the United States District
Court for the District of Colorado upon his pleas of guilty to
one count of bank robbery and one count of false statement.

On

August 3, 1988, he was sentenced to twenty-five years in prison.
4

See

DeWilliams

2011).

Three

“Clarification

v.

Walsh,

weeks
of

2011

after

WL

3268610

sentencing,

Judgment”

stating

(D.Colo.

July

judge

entered

the
that

Mr.

28,
a

DeWilliams’

“sentence had been imposed under the law that pre-existed the
United States Sentencing Commission’s promulgation of sentencing
guidelines”

based

on

that

court’s

finding

Sentencing Guidelines were unconstitutional.

that
Id.

the

U.S.

However, in

January 1989, the Supreme Court issued its opinion in Mistretta
v.

United

States,

488

U.S.

361

(1989),

holding

that

the

set

forth

Mr.

after

his

1988

guidelines are constitutional.
In

DeWilliams,

DeWilliam’s

the

extensive

sentencing

litigation

court

history

convictions and sentence:
Mr. DeWilliams appealed directly to the United
States Court of Appeals for the Tenth Circuit (Tenth
Circuit), claiming that this Court should have allowed
him to withdraw his guilty plea pursuant to Rule 32(d)
of the Federal Rules of Criminal Procedure, or at
least the Court should have granted him an evidentiary
hearing to allow him to demonstrate fair and just
reasons for a plea withdrawal. In affirming this
Court’s conviction, the Tenth Circuit found that the
district court conducted a proper Fed.R.Crim.P. 11
hearing, and that Mr. DeWilliams failed to present any
substantial reasons to warrant either an evidentiary
hearing on the motion to withdraw his guilty plea or
fair and just reasons to grant such a motion. United
States v. DeWilliams, No. 88–2225 (10th Cir. Jan. 23,
1990) (not selected for publication). On June 4, 1990,
the United States Supreme Court denied certiorari
review.
Approximately fifteen years later, on August 8,
2005, Mr. DeWilliams filed in No. 88–cr–00064–ZLW–1 a
5

motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 and a petition for writ
of coram nobis seeking to be resentenced under the
sentencing
guidelines.
He
based
his
claim
on
Mistretta. On August 31, 2005, this Court denied the §
2255 motion as time barred. The Court also denied the
coram nobis petition, finding it was simply an attempt
to circumvent the time limitation contained in § 2255.
Undeterred, on September 19, 2005, Mr. DeWilliams
filed pro se in No. 88–cr–00064–ZLW–1 a motion to
correct an illegal or unauthorized sentence pursuant
to Fed.R.Crim.P. 35(a), raising the same argument as
in the § 2255 motion and coram nobis petition. On
October 27, 2005, the Court denied the motion,
concluding that Fed.R.Crim.P. 35(a) did not afford an
avenue for relief. The Tenth Circuit affirmed. See
United States v. DeWilliams, No. 05–1495, 178 Fed.
Appx. 819 (10th Cir. May 4, 2006) (unpublished).
On April 28, 2008, Mr. DeWilliams filed in No.
88–cr–00064–ZLW–1 a motion titled “Motion to Amend or
Modify
Sentence
Retroactively
Pursuant
to
[Mistretta],” which the Court summarily denied on May
16, 2008, noting it “contains the same arguments
previously
presented
before
this
Court.
[The]
requested relief remains time barred under 28 U.S.C. §
2255 and relief continues to be unavailable . . .
under Fed.R.Crim.P. 35(a).” On November 13, 2008, the
Tenth Circuit dismissed the appeal, characterizing the
motion to amend or modify sentence filed in this Court
as a second or successive § 2255 motion, denying Mr.
DeWilliams leave to proceed in forma pauperis on
appeal, and directing him to pay the filing fee in
full. See United States v. DeWilliams, No. 08–1223,
299 Fed. Appx. 801 (10th Cir. Nov. 13, 2008).
In the meantime, on December 3, 2007, Mr.
DeWilliams filed a 28 U .S.C. § 2241 habeas corpus
application
in
this
Court,
which
denied
the
application on September 30, 2009, noting that the
application was “thinly veiled,” “brought in title
only under 28 U.S.C. § 2241,” and “again [sought]
vainly to achieve time-barred relief under 28 U.S.C. §
2255.” See DeWilliams v. Davis, No. 07–cv–02513–REB–
MJW, slip op. at 2 (D.Colo. Sept. 30, 2009)
(unpublished) (ECF No. 68). On March 16, 2010, the
Tenth Circuit agreed with the district court’s
6

characterization of Mr. DeWilliams § 2241 application,
determined the application was really an unauthorized
successive motion for relief under § 2255, vacated the
district
court’s
ruling
denying
the
§
2241
application, treated Mr. DeWilliams’ notice of appeal
and appellate brief as an implied application for
leave to file a successive § 2255 motion, and denied
such leave because Mr. DeWilliams failed to come forth
with newly discovered evidence or a new rule of law
applicable retroactively to his case pursuant to 28
U.S.C. § 2255(h). See DeWilliams v. Davis, No. 09–
1449, 369 Fed. App’x 912, 914 (10th Cir. Mar. 16,
2010).
On February 25, 2011, Mr. DeWilliams again filed
a habeas corpus application pursuant to § 2241
challenging the validity of his criminal conviction
and sentence. The Court denied the application and
dismissed the action for lack of jurisdiction as an
unauthorized successive motion for relief under §
2255. See DeWilliams v. Garcia, No. 11–cv–00480–LTB
(D. Colo. June 17, 2011)(ECF No. 20). The Court,
quoting No. 07–cv–02513–REB–MJW, slip op. at 2 (ECF
No. 68), noted that No. 11–CV–00480–LTB was another
“‘thinly veiled application, which is brought in title
only under § 2241, . . . seek[ing] vainly to achieve
time barred relief under § 2255.” See No. 11–cv–00480–
LTB, slip ap. at 6 (ECF No. 20).
Id. *1-*3.

In the above-quoted case, the sentencing court had

before it DeWilliams’ pro se “action in the nature of mandamus”
in

which

he

asked

that

court

to

“compel

the

United

States

Attorney from exercising the judgment in his criminal case.”
Id. at *1.

That court warned plaintiff of the three strikes

provision in 28 U.S.C. § 1915(g) before dismissing “the action
in the nature of mandamus pursuant to § 1915(e)(2)(B) as legally
frivolous.”5

Id.

5

The court noted that a “legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that clearly does not
exist or asserts facts that do not support an arguable claim.”
Id. (citing

7

While Mr. DeWilliams was confined in Littleton Colorado, he
filed a “pro se petition for writ of mandamus and declaratory
judgment”
reverse

in
the

the
1988

District

of

Columbia

judgment,”

compel

asking

the

Department

court
of

“to

Justice

officials to “Null and Void Clarification Judgment Order,” and
compel the U.S. Attorney to enforce the plea agreement.
DeWilliams v. Holder, 2011 WL 1042592 (D.C. 2011).

See

That court

found the action “was yet another of plaintiff’s attempts to
overturn

his

conviction,

where

he

will

not

dismissed for lack of subject matter jurisdiction.

succeed”

and

Id.

In December 2011, Mr. DeWilliams sought authorization from
the Tenth Circuit to file a successive § 2255 application.
Circuit discussed his request:
Mr. deWilliams seeks authorization to assert claims
primarily concerning his 1988 sentence: (1) the
Mistretta decision was previously unavailable to him;
(2) his case was on direct appeal and not final when
Mistretta was decided; (3) his guilty plea was not
intelligently, knowingly, or voluntarily made because
he was never informed about the difference between
pre-guidelines and guidelines sentencing law; (4) his
trial counsel was ineffective with regard to his
sentence during plea negotiations, at the change of
plea hearing, and during sentencing, and counsel acted
under a conflict of interest; (5) the prosecutor
breached the plea agreement by failing to ensure a
limited sentence under the guidelines; (6) the
district court was biased regarding sentencing law;
(7) the district court lacked jurisdiction to enter
the clarification of judgment because he had already
filed a timely notice of appeal; (8) his appellate
counsel
was
ineffective
for
failing
to
raise
Neitzke v. Williams, 490 U.S. 319, 324 (1989)).

8

The

sentencing
issues;
and
(9)
his
sentence
is
unconstitutional. Although Mr. deWilliams concedes
only that claims (1), (2), and (8) were raised
previously, all of his other claims concern his preguidelines sentence and are versions of claims he has
presented previously in his many attempts to have his
sentence changed to a guidelines sentence.
See In re DeWilliams, App.Case 11-1575, 5 (10th Cir. Jan. 26,
2012)(unpublished).

The Circuit quoted 28 U.S.C. § 2255(h) and

discussed the showings that must be made thereunder.

Id. at 4.

They found that Mistretta was not a new rule of constitutional
law, and that none of plaintiff’s claims met “the new law or new
facts requirement of § 2255(h).”

Id.

In closing, the Tenth

Circuit warned Mr. DeWilliams that they “will impose sanctions
if he continues to challenge his 1988 sentence.”

Id. at 7.

ALLEGATIONS AND CLAIMS
Mr. DeWilliams begins his initial pleading filed in this
action with the following statement:
The sole issue presented . . . is whether the Federal
Sentencing Guidelines Act of 1984 . . . applies to the
. . . offenses in this case on January 15, 1988 and
March 7, 1988, and on the date of sentencing for those
two offenses on August 3, 1988.
Petition (Doc. 1) at 1.
claims and arguments.

He then makes numerous allegations,
His allegations include the following.

In June 1988, he entered into a plea agreement in which the
United States agreed that he would be sentenced under the newlyenacted

Sentencing

constitutionality.

Guidelines

and

not

to

oppose

their

On August 3, 1988, he was sentenced to an
9

aggregated 25-year term.

United States v. DeWilliams, Case No.

88-CR-64-CMA (D.Colo. 1988).
appealed.

On August 9, 1988, he directly

On August 24, 1988, the sentencing judge conducted a

second sentencing hearing and issued an order to clarify that
“sentences imposed in her court” were under “pre-existing law”
and not the SRA of 1984.

Plaintiff was not provided notice of

that hearing, and neither he nor his counsel was present.

At

the beginning of plaintiff’s confinement, the Federal Bureau of
Prisons

(BOP)

computed

his

sentence

under

the

Sentencing

Guidelines rather than pre-exisiting law and he was not required
to appear before the Parole Commission.6

From 1988 until 2005 he

believed that the issue of “his excessive 300 months term” had
been resolved.

In 1992-1993 defendants “changed the sentence

procedure” and voided all statutory good time awarded to him as
against a Guidelines sentence, and the USPC assumed authority
over him.

In 2006, Mr. DeWilliams first became aware of the

“Clarification of Judgment Order” when it was shown to him by a
prison case manager and found out that his sentence had been
changed “from a Sentencing Guideline sentence to a Pre-Guideline
sentence” in accord with that order.

6

He thereafter pursued

However, petitioner also alleges that the USPC conducted an initial
parole hearing in 1992 and granted parole effective March 1997 and in 1999 he
was taken into custody as a parole violator based on new criminal conduct and
sanctioned with a 32-months violator term.
A new sentence was imposed on
August 31, 2000 that was ordered to run consecutive to the undischarged
parole revocation term.
He was re-paroled effective December 2001, but
apparently again violated parole.

10

administrative
informed

by

remedies

General

by

filing

Counsel

in

a

2007

BP-8

and

was

that

“P.S.

§

finally
5800.13

‘forbids staff from changing any sentence without a verified,
amended

criminal

judgment

appropriate court.”

or

other

order

issued

by

the

He also pursued judicial remedies “through

28 U.S.C. § 2255, 28 U.S.C. § 2241, 28 U.S.C. § 1651, and Rule
60(b)’s “all to (no) avail.”
Mr.

DeWilliams’

following.
offenses

many

claims

and

arguments

include

the

The sentencing court did not make clear why his
were

under

pre-existing

rather

than

current

law.

Defendants violated his constitutional rights by not informing
him of what authority and “what court orders and facts the BOP
relied upon to change the J&C into a pre-Guideline sentence.”
He was denied his right to object and appeal the clarification
order.

The

clarification

order was based on

the “erroneous

judicial determination” that the Sentencing Reform Act (SRA) was
unconstitutional.

The

clarification

order

resulted

in

his

receiving a greater punishment than authorized by federal law on
the date of his offenses.

The 1987 Sentencing Guidelines in

effect when he was sentenced “assigned a lesser consequence[] to
his acts on January 15 and March 7, 1988.”

His 1988 offenses

and sentence should be processed under the USSG provisions that
existed after the SRA became effective.

He had a right to the

plea agreement’s incorporation of the Sentencing Guidelines and
11

is entitled to a sentence under the SRA “and its promulgated
Sentencing

Guidelines,

sentence is illegal.

policies

and

amendments.”

His

1988

He had an expectation of up to 54 days

credit toward service of his sentence at the end of each year.
Congress

did

not

Reorganization

Act

intend
(PCRA)

for
of

the

1976

Parole

to

apply

sentences committed after its effective date.
Fulwood

had

authority

to

change

the

Commission
to

and

offenses

or

Defendant Isaac

criminal

judgment

and

commitment order, but he and all defendants “have indicated that
(DeWilliams’) remedy lies in the District Court that sentenced
him.”

Defendants

were

made

aware

of

their

“predecessor’s”

action and have failed to request an amended criminal judgment.
The

acts

of

defendants

should

be

held

to

have

violated

due

process, the ex post facto clause, and equal protection, and
held to be void.

His “extraordinary period of incarceration” is

cruel and unusual punishment that violates the Eighth Amendment.
Mr. DeWilliams states that he is not asking for release
because of the conviction he is currently serving.

However, he

claims that his 1988 sentence exceeded the amount authorized
when the offense occurred by “as much as 263 months” and claims
that

“his

Full

Term
June

5,

of

Expiration

1993.”

He

under

the

requests

a

Sentencing

Guidelines

was

“show

cause

hearing.”

He asks the court to compel “Defendants” to change

his sentence “back under the Sentencing Reform Act of 1984 and
12

amended 18 U.S.C. § 3551 et. seq., or under the laws in effect
on the date the offenses were committed and to enjoin defendants
to enforce” the August 3, 1988 Judgment and Commitment order.
He also complains regarding unspecified parole provisions that
were applied to his case and asks the court to “set aside” the
authority of the USPC over his case.7
STANDARDS
A.

Screening
Because

Mr.

DeWilliams

is

a

prisoner

suing

government

officials, the federal district court is required by statute to
screen his complaint and to dismiss the complaint or any portion
thereof

that

is

frivolous,

fails

to

state

a

claim

on

which

relief may be granted, or seeks relief from a defendant immune
from such relief.

28 U.S.C. § 1915A(a) and (b); 28 U.S.C. §

1915(e)(2)(B).
B.

Mandamus
28 U.S.C. § 1361 provides that:
the district courts shall have original jurisdiction
of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.

The requirements for issuance of a writ of mandamus are strict.
Dalton v. United States, 733 F.2d 710, 716 (10th Cir. 1984).
“Mandamus

is

a

“drastic”

remedy

7

“to

be

invoked

only

in

Plaintiff’s claims regarding actions of the U.S. Parole Commission like
all his other claims are premised on his assertion that he was sentenced
under the wrong provisions in 1988.

13

extraordinary situations.”

Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33, 34 (1980).

It “is not available when review by

other means is possible.”

W. Shoshone Bus. Council v. Babbitt,

1 F.3d 1052, 1059 (10th Cir. 1993)(citations omitted).

“In

order to insure that the writ will issue only in extraordinary
circumstances” the U.S. Supreme Court
has required that a party seeking issuance have no
other adequate means to attain the relief he desires,
and that he satisfy the “burden of showing that [his]
right to issuance of the writ is “clear and
indisputable.”
Id. at 35 (citations omitted); In re Kozeny, 236 F.3d 615, 620
(10th Cir. 2000); Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir.
1988)(“To grant mandamus relief, the court must find (1) a clear
right

in

the

plaintiff

to

the

relief

sought;

(2)

a

plainly

defined and preemptory duty on the part of the defendant to do
the action in question; and (3) no other adequate remedy is
available.”);

Heckler

(1984)(mandamus
plaintiff

a

is

clear

v.

Ringer,

available

only

nondiscretionary

466
if

U.S.

the

duty.);

602,

616

defendant

owes

see

also

Pittston

Coal Group v. Sebben, 488 U.S. 105, 121 (1988)(mandamus will
“issue

only

to

compel

the

performance

of

a

clear

nondiscretionary duty.”).
B.

§ 2255
In addition to the direct appeal procedures provided in 28

U.S.C. § 1291, Congress enacted the 28 U.S.C. § 2255 motion to
14

vacate

for

judgment

of

collateral
conviction

attacks
or

on

the

validity

sentence.

The

28

of

a

U.S.C.

federal
§

2255

statute expressly requires that such a motion be brought in the
court in which the conviction or sentence was entered.8

United

States v. Hayman, 342 U.S. 205, 216 (1952); see Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996)(“A 28 U.S.C. § 2255
petition attacks the legality of detention, and must be filed in
the district that imposed the sentence.”)(citations omitted).
The § 2255 motion to vacate is the exclusive remedy for testing
the validity of a federal conviction or sentence unless it is
shown to be inadequate or ineffective.

28 U.S.C. § 2255(e);9

Williams

672,

v.

United

1963)(per curiam);

States,
Bradshaw,

323

F.2d

86 F.3d

at

166;

Taylor, 347 F.2d 365, 366 (10th Cir. 1965).
8

673
see

(10th

Johnson v.

It is the federal

Section 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.
9

Section 2255(e) 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.

15

Cir.

prisoner’s burden to show that the § 2255 remedy is inadequate
or

ineffective.

inadequate

or

circumstances.”

The

§

2255

ineffective

remedy
only

has
in

been

found

“extremely

to

be

limited

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

Cir. 1999).
DISCUSSION
All Mr. DeWilliams’ allegations, arguments and claims in
this action are undoubtedly attempts to challenge the legality
of his 1988 federal criminal convictions and sentence.
been

repeatedly

notified

and

reminded

in

prior

He has

actions

that

subsequent to direct appeal his “exclusive remedy” for these
claims is a motion to vacate filed pursuant to § 2255 in the
sentencing court.10

This court clearly lacks jurisdiction to

consider plaintiff’s challenges to his federal convictions and
sentence because this is not the court in which he was convicted
and sentenced.

28 U.S.C. § 2255; Haugh v. Booker, 210 F.3d

1147, 1152 (10th Cir. 2000)(“Because a section 2255 motion must
be brought in the district in which the defendant was sentenced,
the district court here lacked jurisdiction.”).

Section 2255

motions are subject to two significant statutory “gate-keeping”
10

The court is not compelled to “liberally construe” this mandamus action
as a successive § 2241 petition just because it was filed in the district of
incarceration. Mr. DeWilliams has previously been notified with citations to
controlling case law that Section 2241 is not an additional, alternative, or
supplemental remedy to the relief afforded by motion in the sentencing court
under § 2255, and that review under § 2241 is available only upon a showing
that the remedy provided by § 2255 is inadequate or ineffective.

16

restrictions: a one-year statute of limitations in § 2255(f) and
a ban on second and successive motions in § 2255(e).

A federal

inmate may not avoid these restrictions by simply insisting that
his claims are brought under § 1361, § 2241, or some other
inappropriate legal process and not § 2255.

Mr. DeWilliams has

already sought relief from the sentencing court by way of a §
2255 motion.

He has also sought Circuit preauthorization to

file a second and successive § 2255 application.
denied by the correct courts for valid reasons.
effort

in

this

case

to

show

that

his

§

Both were
He makes no

2255

remedy

was

inadequate or ineffective and suggests no reasons why he could
not have presented all the claims raised in his complaint in a
timely first § 2255 motion.

The fact that Mr. DeWilliams was

denied relief by the sentencing court under § 2255, even if that
decision

was

erroneous,

does

not

establish

remedy was inadequate or ineffective.

that

his

§

2255

His allegations that he

has no right to have his sentence corrected under Rule 35(a), 28
U.S.C.

§

2255(f)(1)

or

(f)(4),

or

28

U.S.C.

§

2241

do

not

entitle him to either habeas or mandamus relief in this court.
Furthermore, even though Mr. DeWilliams is now precluded from
filing another § 2255 motion by the statute-of-limitations and
successive-writ provisions of § 2255, that fact alone does not
establish that his § 2255 remedy was adequate.

Caravalho, 177

F.3d at 1178–1179 (finding § 2255 remedy was not ineffective or
17

inadequate where procedural obstacles set forth in Antiterrorism
and Effective Death Penalty Act barred petitioner from bringing
successive

§

2255

motion);

see

Bradshaw,

86

F.3d

at

166

(“Failure to obtain relief under 2255 does not establish that
the

remedy

so

provided

is

either

inadequate

or

ineffective.”)(quotation omitted); see also Sines v. Wilner, 609
F.3d 1070, 1073–74 (10th Cir. 2010).
DeWilliams’

exclusive

remedy

In summary, because Mr.

for

challenging

his

federal

convictions and sentence is a § 2255 motion and he makes no
showing that his § 2255 remedy was inadequate or ineffective,
his

habeas

claims

in

this

action

prejudice for lack of jurisdiction.

must

be

dismissed

without

See Gibson v. Fleming, 28

Fed.Appx. 911, 913 (10th Cir. 2001)(court should have dismissed
§

2241

habeas

jurisdiction
sentence

and

petition

where

without

petition

petitioner

prejudice

challenged

did

not

for

federal

show

§

lack

of

conviction

2255

remedy

or
was

inadequate or ineffective).
Given that Mr. DeWilliams did not obtain preauthorization
from the Tenth Circuit to file a successive application, this
court, like the sentencing court, lacks jurisdiction to consider
the § 2255 claims presented in his complaint.

This court has

the authority to transfer a successive habeas application to the
proper Court of Appeals if such a transfer is in the interest of
justice.

However,

it

determines
18

in

this

case

that

such

a

transfer would only result in raising false hopes and further
waste

of

doomed.”

judicial

resources

because

this

action

is

“clearly

Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000).

Mr.

DeWilliams’

assertions

that

this

“court

has

jurisdiction over this action under . . . 28 U.S.C. §§ 1361” and
that

he

has

defendants

a

are

right

to

dismissed

1915(e)(2)(B).11

mandamus
as

relief

legally

against

frivolous

the

pursuant

named
to

§

Mr. DeWilliams has previously been informed of

the strictures upon mandamus relief and that a petition for writ
of mandamus is not an appropriate vehicle for challenging his
1988 federal convictions or sentence.
sentencing

court

in

DeWilliams

v.

The court finds, like the
Walsh,

that

this

mandamus

action “is yet another thinly veiled attempt” by Mr. DeWilliams
to challenge the same convictions or sentence that he previously
challenged on direct appeal and through numerous post-conviction
collateral attacks.

Mr. DeWilliams does not show that he has a

clear right to mandamus relief against the named defendants.

11

Plaintiff’s bald citations to 28 U.S.C. § 1391 and other statutes do
not establish this court’s jurisdiction. He alleges no facts whatsoever and
cites no authority to establish jurisdiction under any of these provisions.
Section 1391 governs venue and does not confer jurisdiction.
With no
explanation, plaintiff also cites § 701-706 of the Administrative Procedure
Act; 5 U.S.C. §§ 551, 552, et seq.; “the Sentencing Reform Act of 1984;” and
28 U.S.C. § 1367(a)(supplemental jurisdiction).
Section 551 contains
definitions of terms and does not confer jurisdiction.
Section 552 governs
information that “each agency shall make available to the public” and does
not confer jurisdiction over challenges to a federal sentence or conviction.
Nor does the SRA confer jurisdiction over plaintiff’s claims.
Likewise, no
factual or legal basis is apparent for plaintiff’s assertion of supplemental
jurisdiction.

19

Nor does he show that the named defendants owe him a clear
nondiscretionary duty to change the 1988 sentencing order in his
criminal case.
remedy

under

inadequate

Furthermore, as already noted, plaintiff had a
§

or

2255

and

utterly

ineffective.

For

fails

to

these

show

that

reasons,

it

was

plaintiff’s

claims for mandamus relief are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)
frivolous.

for
In

failure

addition,

to

state

a

claim

and

the

court

designates

as

this

legally
mandamus

action as another “strike” against Mr. DeWilliams pursuant to 28
U.S.C. § 1915(g).
PENDING MOTIONS
Mr. DeWilliams has filed several motions that are pending:
Motion

for

expeditious

hearing

(Doc.

3);

Motion

for

summary

judgment (Doc. 4); Motion for Substitution of Party Defendants
(Doc. 7), and Motion for resolution (Doc. 8).

The court finds

that these motions are moot due to the court’s dismissal of this
action.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed, without prejudice, for failure to state a claim, as
frivolous and for lack of jurisdiction and that all relief is
denied.
IT IS FURTHER ORDERED that all pending motions (Docs. 3, 4,
7, & 8) are denied as moot.
IT IS FURTHER ORDERED that Mr. DeWilliams is provisionally
20

granted leave to proceed without prepayment of fees conditioned
upon his filing within thirty (30) days a properly completed and
supported Motion for Leave to Proceed without Prepayment of Fees
on

court-provided

forms.

Plaintiff

is

hereby

assessed

the

filing fee of $350.00 to be paid through payments automatically
deducted from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).

The Finance Office of the facility where

plaintiff is currently incarcerated is directed by copy of this
Order to collect from plaintiff’s account and pay to the clerk
of the court twenty percent (20%) of the prior month’s income
each time the amount in plaintiff’s account exceeds ten dollars
($10.00) until plaintiff’s outstanding filing fee obligation has
been paid in full.

Plaintiff is directed to cooperate fully

with his custodian in authorizing disbursements to satisfy the
filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian
to disburse funds from his account.
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

office.

The

clerk

is

confined,
also

and

directed

to
to

the

court’s

send

IFP

finance

forms

plaintiff.
IT IS SO ORDERED.
DATED:

This 2nd day of July, 2015, at Topeka, Kansas.
21

to

s/Richard D. Rogers
Richard D. Rogers
United StatesDistrict Judge

22