Glover v. Fox , 550 F. App'x 592 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
December 18, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ALEX SONNI GLOVER, JR.,
Petitioner - Appellant,
v. No. 13-6259
(D.C. No. 5:13-CV-00965-M)
JOHN FOX, (W.D. Oklahoma)
Respondent - Appellee.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
Defendant and petitioner, Alex Sonni Glover, Jr., proceeding pro se, seeks
a certificate of appealability (“COA”) to enable him to appeal the dismissal of his
action which we properly construe as a motion under 28 U.S.C. § 2255.
Concluding that Mr. Glover has failed to meet the requirements for issuance of a
COA, we deny him a COA and dismiss this matter.
Mr. Glover has appeared several times before this court and the district
court. We summarize the history of this case, as stated in a recent district court
*
This order is not binding precedent, except under the doctrines of law of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.
decision involving Mr. Glover, in which he sought relief under 28 U.S.C. § 2255
from the Northern District of Oklahoma (the district in which he was originally
convicted and sentenced):
On July 8, 2005, a grand jury returned a one count indictment
charging defendant with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), and the indictment listed three
prior felony convictions. Defendant pled guilty . . . . The PSR
noted that defendant had five prior convictions that qualified as
violent felonies under the ACCA . . . . One of those convictions was
a 1996 Nevada conviction for larceny from a person . . . .
[D]efendant was sentenced to 180 months imprisonment [and] the
Tenth Circuit Court of Appeals affirmed.
United States v. Glover, 2013 WL 4097915, at *1 (N.D. Okla., Aug. 13, 2013)
(unpublished). Mr. Glover’s lengthy post-conviction proceedings then
commenced:
On May 2, 2008, defendant filed a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. [The district court
concluded that Mr. Glover] was still subject to the statutory
mandatory minimum sentence of 15 years under the ACCA.
Defendant sought a certificate of appealability from the Tenth Circuit
but the Tenth Circuit denied his request . . . and dismissed his appeal.
Defendant filed a motion for relief under 28 U.S.C. § 2241 and he
argued that his conviction for larceny from a person was not a violent
felony. The Court found that the defendant was attacking the
validity of his sentence and his motion should be construed as a
second or successive § 2255. Defendant next filed a motion for
relief under Fed. R. Civ. P. 60(b)(6), and he argued that the court
committed procedural error by using the modified categorical
approach to find that his conviction for larceny from a person was a
violent felony. The Court found that defendant’s motion was not a
“true” Rule 60(b) motion and defendant was actually attacking the
validity of his sentence. Thus, defendant’s motion was actually a
second or successive § 2255 and the Court dismissed the motion for
lack of jurisdiction. Defendant sought authorization from the Tenth
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Circuit to pursue his claims through a second or successive § 2255
motion, but the Tenth Circuit denied his request and found that he
had previously raised the same arguments in numerous prior filings.
Defendant has now filed another § 2255 motion challenging his
sentence under the ACCA. He claims that the Supreme Court’s
decision in Descamps [v. United States, 133 S. Ct. 2276 (2013)]
constitutes an intervening change in the law and he has filed his
motion within one year of the Descamps decision.
Id. (emphasis added; record citations omitted).
The district court then determined that it lacked jurisdiction to consider
Mr. Glover’s second or successive § 2255 motion, “because defendant must
request permission from the Tenth Circuit to file a second or successive § 2255.”
Id. at *2 (citing 28 U.S.C. § 2255(h); United States v. Nelson, 465 F.3d 1145,
1148 (10th Cir. 2006). In so concluding, the district court specifically addressed
an argument Mr. Glover made based on the Supreme Court’s Descamps decision:
Defendant argues that Descamps announced a new rule of law that
was made applicable to cases on collateral review and that he would
not be subject to sentencing under the ACCA based on the ruling in
Descamps. In Descamps, the Supreme Court held that the California
statute for burglary in the first degree was nondivisible and the
district court erred by applying the modified categorical approach
when sentencing the defendant under the ACCA. . . . Descamps
concerns a matter of statutory interpretation as to whether a certain
crime qualifies as a violent felony under the ACCA, and it did not
announce a new rule of constitutional law. The Tenth Circuit has
found that intervening judicial interpretations of statutory law, such
as the ACCA, do not constitute a new rule of constitutional law
under § 2255(h)(2). . . . Descamps did not announce a new rule of
constitutional law and it is not likely that the Tenth Circuit would
authorize the filing of a second or successive § 2255 motion.
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Id. at *3 (emphasis added). The court accordingly dismissed the matter for lack
of jurisdiction.
Mr. Glover then filed the motion/petition which has generated the request
for a COA which is before us now. He filed this action in the Western District of
Oklahoma, and purported to bring it under 28 U.S.C. § 2241, claiming (before the
district court) that “28 U.S.C. § 2255 proves inadequate to test his detention’s
illegality.” Glover v. Fox, 2013 WL 5740449, at *1 (W.D. Okla., Oct. 22, 2013)
(unpublished). He further claimed that “the ‘savings clause’ allows him to
proceed under § 2241 because: (1) the Northern District of Oklahoma erred when
it denied his Taylor [v. United States , 495 U.S. 575 (1990)] claim; and (2) he
cannot raise a statutory argument in a second § 2255 motion.” Id. 1
The district court correctly noted that the “threshold question is whether
[Mr. Glover’s] pleading is properly filed under § 2241.” Id. The district court
went on to reason as follows:
Pleadings filed under § 2241 and § 2255 serve different and
distinct purposes. A petition filed under § 2241 typically attacks the
execution of a sentence rather than its validity and must be filed in
the district where the prisoner is confined. A § 2255 motion, on the
other hand, is generally the exclusive remedy for a federal prisoner
seeking to attack the legality of detention, and must be filed in the
district that imposed the sentence.
1
Mr. Glover’s “Taylor claim” is essentially his claim based upon Descamps,
concerning the appropriate characterization of his prior larceny conviction as a
violent felony or not.
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Because [Mr. Glover] is challenging his sentence’s legality, his
claim would ordinarily fall within the purview of a § 2255 motion.
However, § 2241 could provide an avenue for relief under the limited
circumstances provided in the so-called savings clause of § 2255.
That savings clause provides that § 2241 may be appropriate to
challenge a sentence’s legality if the remedy by § 2255 motion is
inadequate or ineffective. However, a § 2255 motion will rarely be
an inadequate or ineffective remedy to challenge a conviction.
The measure of inadequacy or ineffectiveness is “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.
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. at *2 (quoting Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011)).
The district court then addressed Mr. Glover’s argument that the savings
clause of § 2255 permitted him to proceed under § 2241. The court rejected his
claim that the savings clause applied because the Northern District of Oklahoma
erred in denying him relief under his first § 2255 motion. “[A] petition under
§ 2241 is not available to a petitioner simply because a ‘court has denied him
relief,’” id. (quoting Prost, 636 F.3d at 584), even if such denial was erroneous.
The court also rejected his argument that he is unable to raise a statutory
argument in a second § 2255 motion, stating, “[a]gain, this argument does not
authorize Petitioner to proceed under § 2241. ‘The fact that § 2255 bars [Mr.
Glover] from bringing his statutory interpretation now, in a second § 2255 motion
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. . . , doesn’t mean the § 2255 remedial process was ineffective or inadequate to
test his argument.’” Id. (quoting Prost, 636 F.3d at 580).
The district court therefore concluded that Mr. Glover’s pleading had to be
construed as a motion arising under § 2255. As such, the district court below
lacked jurisdiction: “[b]ecause a petitioner must file a § 2255 motion in the
original sentencing court—here, the Northern District of Oklahoma—this Court
[the Western District of Oklahoma] lacks jurisdiction over the action.” Id. at *3
(citing 28 U.S.C. § 2255(a)). The court then determined that “transfer to the . . .
Northern District of Oklahoma would be futile, as that court would also lack
jurisdiction over [Mr. Glover’s] second and successive § 2255 motion.” Id. That
is so because, as we have stated before, “[a] district court does not have
jurisdiction to address the merits of a second or successive § 2255 . . . claim until
[the Tenth Circuit] has granted the required authorization.” In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008). The district court thus dismissed the petition
without prejudice, for lack of jurisdiction. Mr. Glover seeks a COA in order to
appeal that dismissal.
“A COA is a jurisdictional prerequisite to our review of a petition for a writ
of habeas corpus.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); see
28 U.S.C. § 2253(c)(1)(A). A COA should issue “only if the applicant has made
a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2); he can do this by demonstrating “that reasonable jurists could
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debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Dodd v. Trammell, 730 F.3d 1177,
1205 (10th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
An applicant denied habeas relief on procedural grounds “must also show
‘that jurists of reason would find it debatable . . . whether the district court was
correct in its procedural ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281
(10th Cir. 2008) (quoting Slack, 529 U.S. at 484). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further.” Slack, 529 U.S. at 484.
Based on these standards and the thorough analysis undertaken by the
district court, we are satisfied that no COA should issue. As the district court
correctly recited, Mr. Glover has filed numerous collateral petitions, in two
different federal courts (the Northern and Western Districts of Oklahoma), to
challenge the same conviction, on essentially the same grounds. Indeed, before
our court he again makes the argument, based upon Descamps, which he made
unsuccessfully several times below. We perceive no error in the district court’s
meticulous explanation for why Mr. Glover’s proceeding must be dismissed.
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For the foregoing reasons, we DENY a COA and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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