Webb-El v. Executive Branch ( 2021 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 22, 2021
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
KEITH BRYAN WEBB-EL,
Petitioner - Appellant,
v. No. 20-1421
(D.C. No. 1:20-CV-02573-LTB)
EXECUTIVE BRANCH OF THE (D. Colo.)
GOVERNMENT; J.A. BARNHART,
Warden of USP Florence, CO;
MICHAEL D. CARVAJAL, Director
of Federal Bureau of Prisons;
MERRICK B. GARLAND, * United
States Attorney General,
Respondents - Appellees.
ORDER AND JUDGMENT **
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
After examining Keith Bryan Webb-El’s written submissions and the
appellate record, this panel has determined unanimously that oral argument would
*
Pursuant to Fed. R. App. P. 43(c)(2) Merrick B. Garland is substituted for
William P. Barr, former Attorney General, as a respondent-appellee in this matter.
**
This order and judgment is not binding precedent except under the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.
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.
Webb-El appeals from an order of the district court dismissing his
28 U.S.C. § 2241 petition without prejudice under Fed. R. Civ. P. 41(b).
Webb-El’s district court filings underlying his § 2241 petition were deficient.
Specifically, in his motion to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915, Webb-El failed to file a certified prison account statement. Likewise, the
district court advised Webb-El that the only proper respondent in a § 2241 habeas
corpus action was his current custodian. Webb-El was warned his petition would
be dismissed without further notice if he failed to cure the deficiencies within the
allotted time frame. When Webb-El failed to do so, the district court entered an
order of dismissal on November 16, 2020, dismissing his § 2241 petition without
prejudice. See Fed. R. Civ. P. 41(b).
This court reviews dismissals pursuant to Rule 41(b) for an abuse of
discretion. Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). Notably,
because the dismissal here was without prejudice, the district court was not
required to consider the factors set out by this court in Ehrenhaus v. Reynolds,
965 F.2d 916, 921 (10th Cir. 1992). See Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1162 (10th Cir. 2007) (“Employing Rule 41(b) to dismiss
a case without prejudice for failure to comply with Rule 8 of course allows the
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plaintiff another go at trimming the verbiage; accordingly, a district court may,
without abusing its discretion, enter such an order without attention to any
particular procedures.”). 1 Having reviewed Webb-El’s appellate filings, the
district court’s order, and the entire appellate record, we conclude the district
court did not abuse its discretion when it dismissed Webb-El’s petition. To the
extent this court can decipher Webb-El’s filings, he focuses exclusively on the
merits of his petition, offering up absolutely no reason to think the district court
acted arbitrarily, capriciously, or manifestly unreasonably in dismissing his
petition for failure to comply with the district court’s order.
The judgment of the district court dated November 16, 2020, dismissing
Webb-El’s petition without prejudice for failure to cure deficiencies is
AFFIRMED. Webb-El has also filed a motion seeking to proceed in forma
1
This court is well aware that in certain circumstances even a dismissal
without prejudice may bar refiling and, that in those instances, the extreme
sanction of dismissal must be supported by reference to the Ehrenhaus factors.
See generally Florence v. Decker, 153 F. App’x 478, 480 (10th Cir. 2005)
(unpublished disposition cited solely for its persuasive value). Here, however, it
appears Webb-El has no viable § 2241 petition to file. See Webb-El v. United
States Parole Comm’n, 795 F. App’x 578, 580-81 (10th Cir. 2019) (noting Webb-
El has filed numerous § 2241 petitions challenging the validity of his federal
murder and injury-to-a-child convictions—in both this circuit and others—and
specifically informing Webb-El that such challenges must be made in the
sentencing court in a 28 U.S.C. § 2255 motion). Given Webb-El’s history and the
clear ruling set out in Webb-El, we specifically note it may be appropriate for
either this court or the district court to consider filing restrictions should Webb-El
again try to challenge his murder and injury-to-a-child convictions via a § 2241
petition.
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pauperis on appeal. This court cannot grant his motion unless he is able to “show
a financial inability to pay the required filing fees and the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
In light of the district court’s clear and concise order and the absence of any
reasoned argument in Webb-El’s appellate brief, this court concludes Webb-El’s
appeal is frivolous. Accordingly, Webb-El’s motion to proceed in forma pauperis
and his emergency motion to appoint counsel are DENIED. Webb-El is reminded
of his responsibility to immediately remit any unpaid balance of the appellate
filing fee.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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