Green v. Thomas

Filing 3

MEMORANDUM AND ORDER ENTERED: The petition is denied. Petitioner's motion to proceed in forma pauperis 2 is granted. Signed by District Judge John W. Lungstrum on 04/07/17. Mailed to pro se party Robert E. Green by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT E. GREEN,
Petitioner,
v.

CASE NO. 17-3054-JWL

(FNU) THOMAS, Warden,
CCA Detention Center,
Respondent.

MEMORANDUM AND ORDER
This matter is before the court on a petition filed under 28
U.S.C. § 2241 by a prisoner held at the Leavenworth, Kansas, detention
facility operated by the Corrections Corporation of America (“CCA”).
Petitioner proceeds pro se, and the court grants leave to proceed in
forma pauperis.
The court has conducted an initial review of the petition and
enters the following findings and order.
Background
Petitioner was convicted following a bench trial in the U.S.
District Court for the Western District of Missouri. United States
v. Green, 2011 WL 133033 (W.D. Mo. Jan. 13, 2011). The conviction was
affirmed on appeal. United States v. Green, 691 F.3d 960 (8th Cir.
2012). Petitioner claims that the trial judge retained all of the
exhibits filed during the trial that could show petitioner’s
innocence, thereby preventing the federal appellate court from
adequately reviewing his trial for error (Doc. #2, p. 2).

Discussion
The federal courts are authorized to grant habeas corpus relief
to a prisoner “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §2241(c)(3).
As a federal prisoner, petitioner may challenge the legality of
his conviction by filing a habeas petition under 28 U.S.C. § 2255 in
the district of his conviction. Brace v. United States, 634 F.3d 1167,
1169 (10th Cir. 2011). Ordinarily, a prisoner may seek relief under
Section 2255 only once. See 28 U.S.C. § 2244. In limited circumstances,
and with prior authorization from the appropriate federal court of
appeals, a prisoner may file a second or successive application under
Section 2255. 28 U.S.C. § 2255(h)(1).
A federal prisoner also may challenge the execution of his
sentence by filing a petition under 28 U.S.C. § 2241 in the district
of his confinement. Brace, 634 F.3d at 1169. The remedy under Section
2241 ordinarily does not extend to a challenge to the validity of a
petitioner’s conviction. See Prost v. Anderson, 636 F.3d 578, 586
(10th Cir. 2011)(a prisoner challenging the validity of a federal
conviction or sentence “may seek and win relief only under the pathways
prescribed by §2255.”) The remedy under Section 2241 “is not an
additional, alternative, or supplemental remedy to 28 U.S.C. § 2255.”
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
Congress has created a single exception to this rule by a savings
clause that allows a federal prisoner to resort to Section 2241 to
challenge the validity of his conviction if the remedy under Section
2255 is “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). However, Section 2255 has been found
to be an inadequate or ineffective remedy in only “extremely limited

circumstances.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.
1999). Notably, a failure to obtain relief under Section 2255 does
not establish that the remedy is inadequate or ineffective, Bradshaw,
86 F.3d at 166; nor does the fact that that remedy may be time-barred
render it inadequate or ineffective. Barron v. Fleming, 2002 WL 244851
at *1 (10th Cir. Feb. 21, 2002)(unpublished).
Here, the petition does not suggest any ground that would allow
petitioner to seek relief from his conviction under Section 2241. His
post-conviction remedy for challenging the validity of his conviction
is an action under Section 2255, and there is no showing that the remedy
under that section is inadequate or ineffective. If petitioner wishes
to challenge his federal conviction, his sole remedy is to file a
petition under Section 2255 in the Western District of Missouri.
IT IS, THEREFORE, BY THE COURT ORDERED the petition is denied.
IT IS FURTHER ORDERED petitioner’s motion to proceed in forma
pauperis (Doc. #2) is granted.
IT IS SO ORDERED.
DATED:

This 7th day of April, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge