Dowell v. Garcia ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 19, 2012
Elisabeth A. Shumaker
Clerk of Court
JACK DOWELL,
Petitioner-Appellant,
v. No. 11-1565
(D.C. No. 1:11-CV-03017-LTB)
RENEE GARCIA, (D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.
In 2001, a federal jury in Colorado convicted Jack Dowell of destroying
government property by fire, see 18 U.S.C. § 844(f)(1) & (2), and forcibly interfering
with IRS employees and administration, see 26 U.S.C. § 7212(a). See United States v.
Dowell, 430 F.3d 1100 (10th Cir. 2005). After we affirmed his convictions and sentences
on appeal, Dowell moved to vacate his convictions under 28 U.S.C. § 2255. Id. The
*
The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.motion, which claimed Dowell was denied effective assistance of counsel at trial, was
denied, and Dowell’s appeal from the denial was unsuccessful. United States v. Dowell,
388 F. App’x 781, 783-84 (10th Cir. 2010).
Dowell has since filed several additional motions challenging the validity of his
criminal judgment, including a motion to amend his § 2255 motion, a motion to
disqualify the district judge, and a Rule 60(b) motion to set aside the § 2255 order as void
for want of jurisdiction. United States v. Dowell, 438 F. App’x 706, 707-08 (10th Cir.
2011). The motions were denied, and when Dowell tried to appeal, we construed his
request for a certificate of appealability as one for authorization to file a second motion
under § 2255 and denied it. Id. at 707.
Dowell has returned for a third round, this time on appeal from the district court’s
denial of his 28 U.S.C. § 2241 petition for habeas corpus relief. The essence of his
argument is that the United States lacked jurisdiction to try him for destruction of
property because it did not hold title to the building he tried to set ablaze.1 The district
court denied relief. If a prisoner has already tried and failed under § 2255, he can
proceed under § 2241 only on the exceedingly rare occasion when the remedy provided
under § 2255 was inadequate to challenge his conviction. See Prost v. Anderson, 636
1
We rejected this argument in our order denying Dowell authorization to file a
second § 2255 motion. Dowell, 438 F. App’x at 709. We concluded the argument is
without merit because the criminal statute covering destruction of property covers fire
damage to real property “owned or possessed by, or leased to, the United States,” 18
U.S.C. § 844(f)(1) (emphasis added), and that even if the argument had merit, Dowell
would not be entitled to file a second § 2255 motion because his claim did not fall within
the limited exceptions set forth in § 2255(h). Dowell, 438 F. App’x at 709.
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F.3d 578, 588 (10th Cir.), cert. denied, 132 S. Ct. 1001 (2011). Dowell, the court
explained, could not provide a plausible basis for finding the § 2255 remedy inadequate.
The court went on to deny Dowell’s request to proceed on appeal without prepaying fees,
concluding there were no non-frivolous arguments in support of a potential appeal. See
28 U.S.C. § 1915(a)(3).
Having reviewed the record and the district court’s order, we conclude the district
court’s reasoning was sound.2 Although a petition under § 2241 may be proper when the
remedy under § 2255 is inadequate, that is not the case here. Dowell could have raised
his jurisdictional challenge in his first round of collateral review, and the bar to raising
the claim in a successive petition does not make § 2255 inadequate. See Prost, 636 F.3d
at 585. We agree with the district court; Dowell is not entitled to proceed on appeal
without prepayment of filing and docketing fees. See 28 U.S.C. § 1915(a)(3).
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
2
Although state prisoners proceeding under § 2241 must be granted a certificate
of appealability (“COA”) before their appeal can be considered on the merits, appeals
from federal prisoners proceeding under § 2241 (but not § 2255) can be heard without a
COA. See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000).
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