Ali v. English

Filing 2

MEMORANDUM AND ORDER ENTERED: The petition is dismissed. Signed by District Judge John W. Lungstrum on 01/12/18. Mailed to pro se party Falasha Ali by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FALASHA ALI,
Petitioner,
v.

CASE NO. 17-3227-JWL

NICOLE ENGLISH, Warden,
USP-Leavenworth,
Respondent.
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner, a
prisoner in federal custody at USP-Leavenworth, proceeds pro se. The Court has screened his
Petition (Doc. 1) under Rule 4 of the Rules Governing Habeas Corpus Cases, foll. 28 U.S.C.
§ 2254, and dismisses this action for the following reasons.
Background
Petitioner was sentenced by Judge Roger L. Hunt in the U.S. District Court for the District
of Nevada on October 2, 2008, after pleading guilty on May 28, 2008. USA v. Ali, Case
No. 2:06-cr-00160-APG-RJJ (D. Nev.) (Docs. 63, 68). Petitioner appealed the judgment on
October 8, 2008, and the Ninth Circuit Court of Appeals dismissed the appeal “in light of the valid
appeal waiver” on June 2, 2009. Id. at Docs. 72, 84. On June 2, 2010, Petitioner filed a motion
under § 2255. Id. at Doc. 95. Judge Hunt denied the § 2255 motion on November 17, 2010. Id.
at Doc. 106. Petitioner appealed the dismissal of his § 2255 motion, and the Ninth Circuit Court
of Appeals denied his request for a certificate of appealability on December 20, 2011. Id. at 114.
Petitioner filed a motion to set aside judgment, which was denied by Judge Hunt, and affirmed by

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the Ninth Circuit. Id. at Doc. 135.1
In his unsuccessful § 2255 motion, Petitioner “raised 19 issues related to Ineffective
Assistance of Counsel, and the fact [he] was not competent to enter a plea after being forced to
remain in ‘solitary confinement’ for almost two years, nearly 24 hours a day, while suffering from
schizophrenia.” (Doc. 1, at 4.) In this action, Petitioner challenges the validity of his sentence as
imposed. Petitioner claims actual innocence; ineffective assistance of counsel; his guilty plea
was not knowingly, voluntarily and intelligently entered into; and cumulative trial errors.
Petitioner alleges that the remedy under § 2255 is inadequate “because in 2011 Petitioner filed a
judicial misconduct complaint . . . against sentencing judge Roger L. Hunt who was finally recused
from [his] federal case in 2016.” (Doc. 1, at 5.)
Analysis
A federal prisoner seeking release from allegedly illegal confinement may file a motion to
“vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). A motion under § 2255 must be
filed in the district where the petitioner was convicted and sentence imposed. Sines v. Wilner, 609
F.3d 1070, 1073 (10th Cir. 2010). This remedy is normally the only means to challenge a federal
conviction after the direct appeal is resolved. Brace v. United States, 634 F.3d 1167, 1169 (10th
Cir. 2011). However, under the “savings clause” in § 2255(e), a federal prisoner may file an
application for habeas corpus under 28 U.S.C. § 2241 in the district of confinement if the petitioner
demonstrates that the remedy provided by § 2255 is “inadequate or ineffective to test the legality
of his detention.” 28 U.S.C. § 2255(e).

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On June 21, 2016, Petitioner filed an application to file a second or successive motion under § 2255(h), based on
Johnson v. United States, 135 S. Ct. 2251 (2015). Id. at 161. On July 11, 2016, Judge Hunt entered a Recusal Order
and the action was reassigned to Judge Andrew P. Gordon. Id. at Docs. 154, 155. Judge Gordon denied the motion
under § 2255 and granted Petitioner’s request for a certificate of appealability. Id. at 165. Petitioner filed a notice
of appeal (Doc. 169), and the appeal appears to be still pending.

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Petitioner has not shown a compelling reason that might justify the use of § 2241 to test the
legality of his confinement. “Only in rare instances will § 2255 fail as an adequate or effective
remedy to challenge a conviction or the sentence imposed.” Sines, 609 F.3d at 1073. A
petitioner does not present one of these rare instances “simply by asserting his ability to file a
§ 2255 motion is barred by timing or filing restrictions.” Crawford v. United States, 650 F. App’x
573, 575 (10th Cir. 2016) (unpublished) (citing Sines, 609 F.3d at 1073; Haynes v. Maye, 529 F.
App’x 907, 910 (10th Cir. 2013) (unpublished) (noting fact that § 2255 motion is time-barred
doesn’t render § 2255 remedy inadequate or ineffective); Garris v. Lindsay, 794 F.2d 722, 727
(D.C. Cir. 1986) (“It is the inefficacy of the [§ 2255] remedy, not a personal inability to utilize it,
that is determinative, and appellant’s difficulty here is simply that his circumstances preclude him
from invoking it.”).
Petitioner suggests that his remedy under § 2255 is inadequate because the sentencing
judge, Judge Roger L. Hunt, was biased and did not recuse until 2016. Courts have held that a
petitioner’s suggestion of judicial bias is not sufficient to find that § 2255 is inadequate or
ineffective to test the legality of a petitioner’s detention.
In Kapordelis v. Fox, petitioner invoked the saving clause in § 2255(e), arguing that his
initial § 2255 proceedings were inadequate or ineffective to test the legality of his conviction and
sentence “because the district judge who presided over his § 2255 proceedings was biased against
him and refused to rule on a recusal motion filed by Kapordelis.” Kapordelis v. Fox, 2017 WL
3867809, at *2 (10th Cir. Sept. 5, 2017) (unpublished decision). The Tenth Circuit noted that
“the circumstances described in § 2255(e) are extremely limited” and it is “the prisoner’s burden to
show that these conditions . . . apply to his case.” Id. at *3 (citing Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999); Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011)). The Tenth

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Circuit stated that:
In Prost, we held that “[t]he relevant metric or measure” in applying
the savings clause of § 2255(e) “is whether a petitioner’s argument
challenging the legality of his detention could have been tested in an
initial § 2255 motion.” 636 F.3d at 584. “If a petitioner’s
argument challenging the legality of his detention could’ve been
tested in a § 2255 motion, the clause is satisfied.” Id. (emphasis in
original).
“In this way, the clause is concerned with
process—ensuring the petitioner an opportunity to bring his
argument—not with substance—guaranteeing nothing about what
the opportunity promised will ultimately yield in terms of relief.”
Id. (emphasis in original). In other words, “[t]he ultimate result
may be right or wrong as a matter of substantive law, but the savings
clause is satisfied so long as the petitioner had an opportunity to test
his claim.” Id. at 585.
Id.
The Tenth Circuit rejected Kapordelis’s attempt to rely on the savings clause, finding that
he was not deprived of the adequate and effective opportunity to test the legality of his detention in
his initial § 2255 motion, where he had raised the bias claims in a prior § 2241 action and in his
§ 2255 proceeding, and the Eleventh Circuit affirmed his conviction and sentence on direct appeal.
Id.; see also Meltcalf v. Masters, 2015 WL 5031614, at *3 (S.D.W.V. Aug. 6, 2015) (“The fact that
these claims were unsuccessfully raised in the petitioner’s prior federal proceedings,
notwithstanding his contentions that the Michigan district court and the Sixth Circuit are ‘biased,’
is not a sufficient basis upon which to find that section 2255 is ‘inadequate’ or ‘ineffective’ to test
the legality of the petitioner’s detention.”), adopted 2015 WL 5031557 (S.D.W.V. Aug. 25, 2015),
aff’d 633 F. App’x 586 (4th Cir. Feb. 26, 2016); Barnett v. Ebbert, 535 F. App’x 70, 72 (3rd Cir.
2013) (alleged judicial bias does not render section 2255 inadequate or ineffective and is not a
basis for a section 2241 petition)).
In Petitioner’s case, it does not appear that he raised the issue by filing a motion for recusal

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or otherwise raised the issue in his direct appeal or § 2255 motion.2 However, nothing suggests
that he did not have the opportunity to test the claim like the petitioner in Kapordelis. In Tripati v.
Henman, the Ninth Circuit found that § 2255 was not inadequate or ineffective because of judicial
bias where “[a]ppellant has a remedy available by way of a motion for recusal or disqualification
of biased judges that would make a section 2255 motion . . . an effective remedy even if his
allegations of bias are true and sufficient.” 843 F.2d 1160, 1163 (9th Cir. 1988) (citing Rule 4(a)
Advisory Committee's Note, 28 U.S.C. foll. § 2255 (“A movant is not without remedy if he feels
[that having the trial judge hear his section 2255 motion] is unfair to him. He can file an affidavit
of bias. And there is the right to appellate review if the trial judge refuses to grant his motion.”),
cert. denied 488 U.S. 982 (1988); see also Bradshaw v. Story, 86 F.3d 164, 167 (10th Cir. 1996)
(finding that sentencing court’s denial of prior § 2255 motion does not alone establish bias and,
even if petitioner’s § 2241 petition did established bias, § 2255 would still be adequate because he
could have moved to recuse the sentencing judge).
Having considered the Petition and the nature of the claim presented, the Court dismisses
this matter. Petitioner may seek authorization in the U.S. Court of Appeals for the Ninth Circuit
to pursue a second or successive application for relief under 28 U.S.C. § 2255 in the district of his
conviction. See 28 U.S.C. 2255(h). Having failed to establish that the remedy provided in
§ 2255 was inadequate or ineffective, Petitioner may not proceed under § 2241. Accordingly,
IT IS THEREFORE ORDERED BY THE COURT that the petition is dismissed.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 12th day of January, 2018.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
2

The Court notes that Petitioner asserts that he filed a “judicial misconduct complaint” against Judge Hunt.

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