Winkles v. No Named

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS February 20, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
CLIFFORD MARCUS WINKLES,
Petitioner - Appellant,
v. No. 14-1301
(D.C. No. 1:14-CV-00974-LTB)
NO NAMED RESPONDENT, (D. Colo.)
Respondent - Appellee.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
After examining the briefs and the 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). This case is therefore ordered
submitted without oral argument.
Petitioner Clifford Winkles, a federal prisoner representing himself pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of statutory
jurisdiction. Petitioner is currently serving a lengthy term of imprisonment imposed by
the Central District of California, but he is incarcerated in a U.S. penitentiary in Colorado.
*
This order and judgment is not binding precedent, except under the doctrines of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.
The District of Colorado dismissed his § 2241 petition on the basis that he had not
demonstrated he lacked an adequate and effective remedy to challenge his conviction and
sentence in the sentencing court under 28 U.S.C. § 2255. Among other things, the district
court noted that the issues raised in the instant § 2241 petition are currently pending in a
Ninth Circuit case in which Petitioner is represented by appointed counsel.
On appeal, Petitioner argues he lacks an adequate and effective remedy to
challenge one of his counts of conviction, the count of conspiracy, because he has already
completed his sentence on that count and is now serving his sentence for another count
which carried a mandatory consecutive sentence. However, Petitioner cites to no
authority to support his argument that he is unable to attack all of his counts of conviction
due to the order in which his consecutive sentences were ordered to run. In the related
context of § 2241 challenges to state court convictions, the Supreme Court has held that
“we view consecutive sentences in the aggregate, not as discrete segments.” Garlotte v.
Fordice, 513 U.S. 39, 47 (1995). The Court accordingly ruled that a defendant could file
a habeas challenge to a conviction where his sentence on this conviction ran first in his
consecutive series of sentences, even though this sentence had technically already been
served. We see no reason why the same reasoning would not apply to the case before us,
and we accordingly conclude that Petitioner has not demonstrated that he lacks an
adequate effective remedy under § 2255 based on the order in which his consecutive
sentences were ordered to run.
Petitioner also argues the issues raised in his § 2241 petition are not identical to the
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issues raised in the pending Ninth Circuit case. However, this fact likewise fails to
demonstrate that the remedy available to Petitioner under § 2255 is inadequate or
ineffective.
Accordingly, for substantially the same reasons given by the district court, we
AFFIRM the district court’s dismissal of this case without prejudice for lack of statutory
jurisdiction. We GRANT Petitioner’s motion to proceed in forma pauperis on appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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