Robinson v. Ledezma ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
October 14, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JERRY L. ROBINSON,
Petitioner-Appellant,
v. No. 10-6123
(D.C. No. 5:09-CV-01369-F)
HECTOR A. LEDEZMA, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and KELLY, Circuit Judges.
This case presents unusual and compelling circumstances for federal
post-conviction relief. Petitioner is currently incarcerated for an additional five
years beyond the statutorily authorized term due to an erroneous specification of
his offense in the indictment, plea agreement, and judgment of conviction. The
operative mistake, actively shared in by defense counsel, the prosecution, and the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
trial judge, is patently evident on the record. The government specifically
charged, petitioner (advised by counsel) pled guilty to, and the district court
formally convicted defendant of violating 21 U.S.C. § 841(b)(1)(C) for possessing
with intent to distribute 1300 grams of marijuana. But possessing with intent to
distribute 1300 grams, or 1.3 kilograms, of marijuana is not a violation of
§ 841(b)(1)(C), it is a violation of § 841(b)(1)(D) (addressing offense involving
less than 50 kilograms of marijuana). And this factually unsupported conviction
demonstrably prejudiced the petitioner: the 120-month sentence he received
would have been permissible for the former violation but plainly exceeds the
five-year maximum authorized for the latter. Petitioner has already served more
than the allowed five years; to keep him confined longer is an injustice.
Errors cannot always be remedied by legal action, of course. This is
particularly true where early inaction or procedural misstep by the defendant has
left an error in a criminal prosecution unchallenged until well after a conviction
has become final. Congress has erected formidable barriers to relief in this
circumstance: the one-year statute of limitations in § 2255(f); and, where the
defendant has already pursued one (or more) § 2255 motion(s) challenging the
conviction or sentence in question, the rigorous constraints in § 2255(h) on filing
second or successive § 2255 motions. 1 But these procedural barriers do not fully
1
Relief may also be precluded by non-statutory impediments, such as the
common law procedural bar applicable to claims that could have but were not
(continued...)
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extinguish the interests of justice. The limitations period in § 2255(f) is subject
to equitable tolling for various reasons, including the actual innocence of the
defendant. United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008).
More generally, none of the barriers to or constraints on § 2255 motions may be
operative if the § 2255 remedy is properly found “inadequate or ineffective to test
the legality of [the defendant’s] detention,” 28 U.S.C. § 2255(e)—in which case a
petition for a writ of habeas corpus under 28 U.S.C. § 2241 may substitute for the
remedy unavailable under § 2255.
I. Post-Conviction Proceeding under Review
Invoking this last principle, petitioner challenged his invalid conviction and
sentence, imposed in the district court for the District of Kansas, by filing a
habeas petition under § 2241 in the district court for the Western District of
Oklahoma, where he is currently confined. See generally Caravalho v. Pugh,
177 F.3d 1177, 1178 (10th Cir. 1999) (noting that while § 2255 motions must be
filed in the district where sentence was imposed, § 2241 petitions must be filed in
the district where the petitioner is confined). Aware that a § 2255 motion
challenging his conviction and sentence, imposed in 2005, would be subject to the
one-year time bar in § 2255(f), petitioner argued to the district court that his
1
(...continued)
raised by direct appeal, see, e.g., United States v. Wiseman, 297 F.3d 975, 979
(10th Cir. 2002) (discussing United States v. Frady, 456 U.S. 152, 167-68 (1982),
and any waiver of review of sentencing objections in a plea agreement, see, e.g.,
United States v. Cockerham, 237 F.3d 1179, 1182-83 (10th Cir. 2001).
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factual innocence of the offense of conviction, coupled with the unavailability of
relief due to the time bar, provided sufficient grounds for deeming his § 2255
remedy inadequate or ineffective within the meaning of § 2255(e), thereby
justifying his resort to an alternative remedy under § 2241. 2
The district court rejected this argument. Assuming that a § 2255 motion
was presently unavailable to petitioner, the court held such a motion nevertheless
was his exclusive remedy, and dismissed the § 2241 petition without prejudice for
lack of jurisdiction. Petitioner now appeals. We affirm the dismissal of the
§ 2241 petition, but on a slightly different analysis that has significant practical
consequences for petitioner: we hold that relief under § 2255 is still potentially
available and should be pursued promptly in the District of Kansas. As explained
below, petitioner has a colorable basis for equitably tolling the limitations period
2
We note that the constraints on second-or-successive § 2255 motions are
not at issue here. The defendant has not previously challenged his conviction or
sentence under § 2255, and thus could file such a motion in the District of Kansas
without circuit authorization under § 2255(h) and § 2244(b)(3). He did file two
habeas petitions (one initially mischaracterized as a § 2255 motion), but these
were properly treated as § 2241 challenges to the execution of sentence (involving
claims regarding anti-shuttling provisions of the Interstate Agreement on
Detainers Act and credit for time served). Moreover, they were ultimately
dismissed without prejudice on grounds–mootness and lack of exhaustion–that
would not trigger second-or-successive constraints in any event. This circuit “has
generally held that any habeas petition that does not result in an adjudication on
the merits of the habeas claims, whether that adjudication be on procedural or
substantive grounds, will not count as a first petition for purposes of determining
whether later habeas petitions are second or successive.” Douglas v. Workman,
560 F.3d 1156, 1188-89 & n.18 (10th Cir. 2009) (collecting Supreme Court and
circuit cases holding, for example, that non-prejudicial dismissals on ripeness and
exhaustion grounds do not trigger second-or-successive constraints).
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in § 2255(f). He must pursue that possibility in the Kansas district court through
a proper § 2255 motion before resort to a § 2241 petition as a substitute for an
allegedly “inadequate or ineffective” § 2255 motion is considered. In addition, in
light of the non-jurisdictional nature of the time bar, see United States v. Kelly,
235 F.3d 1238, 1243 (10th Cir. 2000), the government could expressly waive it in
the interest of justice to enable a prompt and procedurally appropriate remedy for
the patently prejudicial error tainting petitioner’s conviction and resultant
sentence, see generally Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002)
(collecting cases recognizing that time-bar in § 2255 and habeas proceedings may
be waived by government). Under the unique circumstances here, we encourage
the government to fully consider this expeditious course.
II. Underlying Criminal Prosecution
The indictment for the count of conviction in this case was invalid on its
face. Petitioner was charged with “knowingly and intentionally possess[ing] with
intent to distribute approximately 1300 grams of a mixture or substance
containing a detectable quantity of marijuana . . . in violation of Title 21, United
States Code, Section 841(a)(1) and 841(b)(1)(C).” Count 3 of Indictment, United
States v. Robinson, D. Kan. No. 04cr40107 (filed Sept. 8, 2004). The judgment of
conviction, entered on petitioner’s guilty plea, followed suit, specifying the
offense of conviction as “21 U.S.C. § 841(a)(1) and (b)(1)(C)” for “Possession
with Intent to Distribute Approximately 1,300 grams of Marijuana.” Judgment
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entered June 28, 2005. As noted above, the specified drug quantity would support
only a violation of § 841(b)(1)(D), not a violation of § 841(b)(1)(C). This error is
not a marginal matter; it goes to the very validity of the charged offense: when,
as here, “the government elects to charge a defendant with possessing with intent
to distribute a certain quantity of drugs, that quantity becomes an element of the
charged offense.” United States v. Montgomery, 468 F.3d 715, 719 (10th Cir.
2006). In essence, petitioner was charged with and convicted of a greater offense
based on stipulated facts that established only a lesser included offense. It bears
emphasis that while the prejudicial consequences were felt at sentencing, the error
here related directly to the validity of the underlying conviction itself.3
Evidently, no one realized the error at the time. The prosecuting attorney,
defense counsel, and the court all overtly proceeded on the basis that petitioner’s
charged conduct violated § 841(b)(1)(C). Every person of legal authority that
admonished or advised petitioner in his case affirmed that his conviction and
sentence under § 841(b)(1)(C) was proper. Indeed, defense counsel negotiated a
3
Petitioner’s circumstance must be distinguished from that of a defendant
who was properly convicted of a § 841 offense but was just sentenced improperly
for that conviction (typically, based on judicial findings in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000)). In the latter case, the defendant merely has
a sentencing objection and cannot claim he was actually innocent of the offense
of conviction. See, e.g., Davis v. Ledezma, No. 10-6106, 2010 WL 3294216,
at *2 (10th Cir. Aug. 23, 2010) (unpub.); United States v. Osborne, 12 F. App’x
815, 821 (10th Cir. 2001) see also United States v. Glover, No. 97-5206, 1998
WL 476779, at *2 (10th Cir. 1998) (unpub.). Here, petitioner was charged with
and convicted of an offense that the charged and admitted facts demonstrate he
did not commit.
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plea agreement that acknowledged sentencing should proceed in accordance with
§ 841(b)(1)(C), and even included a waiver of both appellate and collateral review
of the sentence to be imposed thereunder. 4 Given the consistent representations
of every legal professional involved, petitioner had no reason to question the
legality of his conviction and sentence or the validity of his waiver of review, and
he did not appeal following imposition of his 120-month sentence. 5
III. Analysis of Justification for § 2241 Petition
At some point, however, petitioner became aware of the error that had been
obscured by the unanimous misunderstanding of counsel and the court during his
criminal prosecution. He obtained post-conviction counsel who filed the instant
4
This waiver is immaterial here. As we have repeatedly noted, petitioner’s
invalid conviction under § 841(b)(1)(C) resulted in a sentence in excess of the
statutorily authorized maximum for the lesser § 841(b)(1)(D) offense established
by the facts alleged in the indictment and admitted in his plea. Such an illegal
sentence is a categorical exception to the enforcement of a waiver of review,
either on appeal or post-conviction, included in a plea agreement. See United
States v. Hahn, 359 F.3d 1315, 1324-27 (10th Cir. 2004) (en banc); Cockerham,
237 F.3d at 1182-83.
5
As noted earlier, the failure to take an appeal can raise a procedural bar to
review on post-conviction. See Wiseman, 297 F.3d at 979. Such a bar does not
affect our analysis here for two reasons. First, it is a merits issue properly
reserved for consideration by the district court in the event petitioner properly
seeks review by § 2255 motion in the District of Kansas. Second, as a facial
matter, we note that this case presents circumstances implicating two distinct
exceptions to the procedural bar: (1) petitioner claims he is factually innocent of
the offense of conviction, which would excuse the procedural bar, id. at 979
(citing Bousley v. United States, 523 U.S. 614, 623-24 (1998)); (2) ineffective
assistance of counsel also excuses the procedural bar, id. (citing Coleman v.
Thompson, 501 U.S. 722, 753-54 (1991)), and the suggestion of such a claim by
the facts of this case could hardly be denied.
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§ 2241 petition, rather than a motion under § 2255, on his behalf. Counsel
asserted two justifications for pursuing this course, neither of which we find
persuasive.
First, counsel noted that petitioner had already begun serving the illegal
portion of his sentence, and argued that this circumstance reoriented the focus of
his challenge from the validity of petitioner’s conviction and sentence to the
present execution of his sentence, properly pursued under § 2241. This argument
is faulty in both content and consequences. It rests on a non sequiter: that
petitioner is serving the part of his term he claims to be illegal due to the
invalidity of his underlying conviction or sentence does not in any way alter the
fact that he is challenging the validity of his underlying conviction or sentence.
And it implies patently untenable conclusions: every challenge to the validity of
a conviction (which renders the resultant confinement illegal from day one) would
in reality be a challenge to the execution of sentence, for which § 2241 must be
used; and every challenge to the validity of a sentence would at some point (as
soon as the defendant’s confinement exceeded the point at which he alleged it
became illegal) transform into a challenge to the execution of sentence, for which
§ 2241 must be used. Under this view, § 2241, rather than § 2255, would be the
primary vehicle for challenging federal convictions and sentences. The district
court quite rightfully dismissed this position out of hand.
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Counsel’s second justification for resorting to § 2241 at least invokes a
recognized principle, though under the present circumstances we agree with the
district court that the principle does not apply here. Counsel argues that we
should deem § 2255 to be an inadequate or ineffective remedy for petitioner in
light of the combination of two considerations: first, any § 2255 motion would be
subject to the one-year time bar in § 2255(f); and, second, petitioner’s actual
innocence of the offense of conviction demands some means of remedy in the
interest of justice. This argument draws us into a somewhat obscure area of
jurisprudence–and one all the more uncertain in this circuit, which has yet to
definitively adopt, let alone fully work out the content of, an actual-innocence
exception to the exclusivity of § 2255. Whatever the finer contours of such an
exception might be, however, one thing is certainly clear: a § 2241 petition may
not be used to challenge a federal conviction when potential relief by way of a
§ 2255 motion remains currently available. And petitioner failed to establish this
most obvious threshold point here.
As we have already touched on, the time bar in § 2255(f) is subject to
tolling on the basis of a developing set of equitable considerations. And this
court has recognized actual innocence as one of them. Gabaldon, 522 F.3d at
1124; see also Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (noting
same point in connection with time bar in § 2244(d)(1)). Diligence in pursuing a
§ 2255 motion is also a consideration, Gabaldon, 522 F.3d at 1124, though its
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role in actual-innocence cases has not been definitively settled by this court. We
have yet to decide, for instance, whether a defendant who has demonstrated actual
innocence must nevertheless serve the rest of his sentence–possibly the rest of his
life–in prison for a crime he did not commit simply because he cannot persuade a
court that he acted with sufficient diligence in raising the issue. Fortunately, we
need not wade deeply into this legal quicksand here. The circumstances
surrounding petitioner’s prosecution, plea, and sentencing proceedings, described
earlier, suggest a facially plausible excuse for his failure to promptly recognize
and seek to remedy the claim he has now raised. In accepting the factual validity
of his conviction, and the resultant legality of his ten-year sentence, under
§ 841(b)(1)(C), petitioner followed legal representations made throughout the
proceedings by the government, his own counsel, and the trial judge; indeed, the
unanimous affirmation of legal regularity here culminated in a defense waiver of
appellate and collateral review should sentencing be carried out in accordance
with his conviction under § 841(b)(1)(C).
These circumstances raise at least a colorable basis to argue for the exercise
of judicial discretion in tolling the limitations period in § 2255(f) to permit the
presentation of a claim of actual innocence in a proper § 2255 motion. And that
is enough to render petitioner’s direct recourse to § 2241 in this proceeding
plainly premature and inappropriate.
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While we recognize the substance of the equitable-tolling question insofar
as it relates to the disposition of the § 2241 matter properly before us on appeal,
we do not reach and resolve that question as it relates to the merits of the § 2255
motion petitioner has thus far neglected to pursue. That is a matter beyond the
scope of this appeal, as well as a matter properly reserved in the first instance to
the discretionary judgment of the district court should petitioner properly pursue
his § 2255 remedy in the District of Kansas, cf. Gabaldon , 522 F.3d at 1127(remanding for district court to decide in the first instance issues regarding
equitable tolling that had not been considered prior to sua sponte dismissal of
§ 2255 motion). This course is particularly appropriate here, where the parties
had no occasion to address the question in this § 2241 proceeding (indeed, the
government has not submitted any briefing, on appeal or in the district court, in
this case) . Cf. id. (noting, in support of remand for resolution of equitable tolling
issues, that the government had not yet had an opportunity to address the issues in
district court). Again, however, we emphasize that the government could obviate
a collateral contest over the time bar, and enable prompt remedial action for a
patent error that it played a significant role in creating, by waiving its limitations
defense in the event petitioner pursues relief under § 2255.
IV. Conclusion
For reasons stated above, we hold that petitioner’s attempt to challenge his
conviction and sentence under § 2241 at this juncture was improper. Given the
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substantive nature of his claim and the facially plausible excuse for his delay in
recognizing and asserting it, petitioner has a colorable argument for equitably
tolling the time bar in § 2255(f), and hence cannot demonstrate that the remedy
provided by § 2255 is even currently unavailable to him. Unless and until that
most basic condition is met, it would be futile to consider the propriety of a
§ 2241 petition under an actual-innocence/inadequate-or-ineffective-remedy
rationale. On this understanding, we conclude that the instant § 2241 petition was
properly dismissed without prejudice.
The judgment of the district court is AFFIRMED. Appellant’s motion to
set this case for oral argument is DENIED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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