Mugan v. Denhem ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ALLAN C. MUGAN,
Petitioner - Appellant,
v. No. 16-1446
(D.C. No. 1:16-CV-01233-LTB)
DEBRA DENHAM, (D. Colo.)
Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
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Allan C. Mugan, a federal prisoner, seeks to challenge his conviction and
sentence via a 28 U.S.C. § 2241 habeas corpus petition.1 But a § 2241 petition is not
the proper avenue for challenging the validity of a criminal conviction or sentence.
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its
validity . . . .” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Prost v.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Mugan is proceeding pro se, so we construe his pleadings liberally, but we do
not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (“Meanwhile, § 2241 petitions,
brought in the district where the prisoner is confined, are generally reserved for
complaints about the nature of a prisoner’s confinement, not the fact of his
confinement.”). A 28 U.S.C. § 2255 petition is the proper way for Mugan to attack
the validity of his detention, see Bradshaw, 86 F.3d at 166, but Mugan has already
unsuccessfully sought relief via § 2255, see United States v. Mugan, No. 3:07-cv-
03059-LRR (N.D. Iowa Mar. 29, 2010), appeal dismissed, No. 10-1808 (8th Cir.
Oct. 4, 2010). Mugan did not dispute this at the district court, instead arguing that his
§ 2241 petition should be allowed to proceed because his case meets the “extremely
limited circumstances,” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999)
(internal quotation omitted), in which the remedy provided by § 2255 “is inadequate
or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). To meet
those circumstances, Mugan has the burden to show that the arguments he makes in
his § 2241 petition could not have been raised in a § 2255 petition. See Prost, 636
F.3d at 584.
The district court dismissed Mugan’s petition for lack of statutory jurisdiction
(and therefore without prejudice) because it found Mugan’s various reasons for the
inadequacy of § 2255 unpersuasive. Mugan argued that the test set forth in Prost is
overly restrictive and thus violates the Constitution’s Suspension Clause. See U.S.
Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may
require it.”). But the district court rightly noted that we have already rejected a
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similar claim. See Hale v. Fox, 829 F.3d 1162, 1176 (10th Cir. 2016). The district
court also found that Mugan was wrong in his assertion that the sentencing court had
failed to adjudicate his § 2255 petition and that Mugan was simply dissatisfied with
the result of that adjudication.
Mugan also claimed that intervening law announced in Johnson v. United
States, 135 S. Ct. 2551 (2015), provides the basis for his § 2241 relief. But the
district court noted that, even if Johnson were helpful to Mugan, Johnson announced
a substantive rule with retroactive effect for collateral review and so Mugan could
have brought any claim based on Johnson in a second or successive § 2255 petition.
See 28 U.S.C. § 2255(h)(2). The district court was similarly unreceptive to Mugan’s
actual-innocence claim, as Mugan had presented no new evidence to support it. See
Haley, 829 F.3d at 1171.
We agree with the district court on all these issues. Mugan’s appellate brief
does nothing to dissuade us. He adds little in the way of new argument, instead
merely reiterating the notion that Prost effectively violates the Suspension Clause
and stressing how difficult it is to access § 2241 to challenge the validity of a
sentence and conviction. That high bar is by design—not because of a conspiracy by
the “corrupt judiciary” to forestall justice, as Mugan sees it, Appellant Br. at 3, but
because § 2241 is not meant as a free repeat of the § 2255 process. Mugan had his
§ 2255 chance and he lost. Mugan argues that it was unfair for the same judge who
sentenced him to rule on his § 2255 motion. Putting aside that this is normal practice,
the decision of that judge was also reviewed by the Eighth Circuit, which dismissed
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the appeal. If, in a possible second or successive § 2255 petition, Mugan still believes
that the sentencing judge is biased against him, he can move to recuse her, but even
the existence of bias would not render the § 2255 remedy ineffective. Bradshaw, 86
F.3d at 167.
We also deny Mugan in forma pauperis (ifp) status for this appeal. Mugan was
initially granted leave to proceed with ifp status in this action. But on appeal, the district
court denied him that status and certified that any appeal would not be in good faith. See
28 U.S.C. § 1915(a)(3). Nonetheless, Mugan appealed and filed a motion to proceed with
ifp status. Despite what the seemingly ironclad language of § 1915(a)(3) would indicate,
even a party who has been certified as not appealing in good faith can request ifp status
on appeal so long as he shows both a financial inability to pay and a reasoned,
nonfrivolous argument, and follows the procedure mandated by Fed. R. App. P. 24(a)(5).
Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th Cir. 2007).2 But
because Mugan has not demonstrated the existence of a reasoned, nonfrivolous argument,
we agree that he cannot proceed with ifp status.
2
“Upon its face, § 1915(a)(3) would appear to foreclose our consideration of
[a motion to proceed IFP]; its mandatory language denies the availability of an
appeal in forma pauperis upon the district court’s certification of a lack of good faith,
and it provides no escape hatch of appellate review or reconsideration. Federal Rule
of Appellate Procedure 24(a)(5), on the other hand, purports to expressly permit our
consideration of [such] a motion . . . . The palpable conflict between these provisions
is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact
that its most recent reenactment postdates that of § 1915(a)(3).” Rolland, 497 F.3d
at 1078.
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CONCLUSION
For the reasons stated, we affirm the dismissal of Mugan’s § 2241 petition for
lack of statutory jurisdiction (without prejudice), and deny Mugan ifp status.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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