Camick v. United States , 687 F. App'x 719 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LESLIE LYLE CAMICK,
Petitioner - Appellant,
v. No. 17-3013
(D.C. No. 5:16-CV-03030-SAC-DJW)
UNITED STATES OF AMERICA, (D. Kan.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
_________________________________
Leslie Lyle Camick, proceeding pro se,1 appeals from the denial of his
application for habeas relief under 28 U.S.C. § 2241. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.2
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Because Mr. Camick is proceeding pro se, we construe his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also United States
v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se
litigant’s] arguments liberally; this rule of liberal construction stops, however, at the
point at which we begin to serve as his advocate.”).
I. BACKGROUND
In 2014, Mr. Camick was convicted of mail fraud, wire fraud, material false
statement to the U.S. Patent Office, three counts of aggravated identity theft, and
obstruction of justice. He was sentenced to 48 months in prison. We affirmed the
obstruction of justice conviction but reversed all of the other convictions. United
States v. Camick, 796 F.3d 1206, 1210 (10th Cir. 2015). Following our decision, the
district court entered an amended judgment on November 13, 2015, and sentenced
Mr. Camick to time served plus one year of supervised release.
On January 28, 2016, Mr. Camick filed a § 2241 habeas application in the
United States District Court for the District of Kansas challenging the validity of his
conviction for obstruction of justice under 18 U.S.C. § 1513(e). On June 7, 2016, the
court dismissed the action after determining that a § 2255 motion, rather than a
§ 2241 application, was the appropriate collateral remedy for a challenge to Mr.
Camick’s conviction. Mr. Camick filed a timely notice of appeal.
On appeal, he raises several challenges to the court’s order, all of which attack
the underlying validity of his obstruction of justice conviction, including allegations
of (1) a Brady violation,3 (2) insufficient evidence, (3) erroneous jury instructions,
(4) ineffective assistance of counsel, and (5) actual innocence.
2
A federal prisoner is not required to obtain a certificate of appealability to
seek review of a district court’s denial of a habeas application under § 2241. See
Eldridge v. Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015).
3
See Brady v. Maryland, 373 U.S. 83 (1963).
-2-
II. ANALYSIS
A threshold issue in this appeal is whether the district court was authorized to
review Mr. Camick’s habeas application under § 2241. A § 2241 application
generally attacks the execution of a sentence rather than its validity. Brace v. United
States, 634 F.3d 1167, 1169 (10th Cir. 2011). A § 2255 motion, on the other hand,
“is ordinarily the only means to challenge the validity of a federal conviction
following the conclusion of direct appeal.” Hale v. Fox, 829 F.3d 1162, 1165 (10th
Cir. 2016).
In “rare instances,” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010), a
prisoner may attack his underlying conviction by bringing a § 2241 habeas
application under the “savings clause” in § 2255(e), Hale, 829 F.3d at 1165. The
savings clause provides that “a federal prisoner may resort to § 2241 to contest his
conviction if but only if the § 2255 remedial mechanism was ‘inadequate or
ineffective to test the legality of his detention.’” Prost v. Anderson, 636 F.3d 578,
580 (10th Cir. 2011) (quoting 28 U.S.C. § 2255(e)). “If a petitioner’s argument
challenging the legality of his detention could’ve been tested in a § 2255 motion,”
then the petitioner may not resort to the savings clause and § 2241. Id. at 584.
Mr. Camick is attempting to challenge the validity of his conviction and thus
cannot seek relief under § 2241 unless the § 2255(e) “savings clause” applies. See
Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013) (“[W]hen a federal
petitioner fails to establish that he has satisfied § 2255(e)’s savings clause test—thus,
precluding him from proceeding under § 2241—the court lacks statutory jurisdiction
-3-
to hear his habeas claims.”). Mr. Camick’s arguments that § 2255 provides an
“inadequate or ineffective” remedy in his case are unavailing.
First, he contends that § 2255 was “rendered inadequate” because he was
already denied relief under a § 2255 motion he filed on September 22, 2016. Aplt.
Br. at 25, 64. But a “[f]ailure to obtain relief under 2255 does not establish that the
remedy so provided is either inadequate or ineffective.” Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996) (quotations omitted). Indeed, he included the claims he
brings here in his § 2255 motion. That the district court denied relief—correctly or
not—does not change the fact that Mr. Camick had the opportunity to raise his
arguments in a properly filed § 2255 motion. Prost, 636 F.3d at 584-85 (“[A]n
erroneous decision on a § 2255 motion doesn’t suffice to render the § 2255 motion
itself inadequate or ineffective.” (quotations omitted)); see Hale, 829 F.3d at 1171
(“[A] procedural bar does not render § 2255 “inadequate or ineffective” under
§ 2255(e).”); Zelaya v. Secretary, Florida Dept. of Corrections, 798 F.3d 1360, 1370
(11th Cir. 2015) (“It is by now abundantly clear that the mere fact that a defendant
faces a procedural bar in his first § 2255 motion[,] such as a limitations period or
procedural default does not render the § 2255 motion itself inadequate.” (quotations
omitted)); Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (“[T]he fact that
[petitioner] is procedurally barred from raising [his claim] now does not mean
that § 2255’s remedy was ‘inadequate or ineffective.’”).
Second, he contends the savings clause applies because he is actually innocent.
Aplt. Br. at 45-49. But this court has held that “a showing of actual innocence is
-4-
irrelevant” to whether a remedy under § 2255 is inadequate or ineffective.
Abernathy, 713 F.3d at 546 n.7. And again, he included his “actual innocence” claim
in his § 2255 motion.
Mr. Camick has failed to show § 2255 was “inadequate or ineffective to test
the legality of his detention,” § 2255(e), and thus the district court lacked authority to
review his application under § 2241. Abernathy, 713 F.3d at 557. Accordingly, we
affirm.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
-5-