Warren v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 24, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOHNNY SCOTT WARREN,
Petitioner - Appellant,
No. 17-3142
v. (D.C. No. 5:17-CV-03096-JWL)
(D. Kan.)
UNITED STATES OF AMERICA,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
_________________________________
Pro se federal prisoner Johnny Scott Warren appeals the district court’s denial of
his application for habeas relief under 28 U.S.C. § 2241.1 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 This order and judgment is not binding precedent,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. Warren appears pro se, we construe his filings liberally, see Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft arguments or
otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
1. Procedural History
Mr. Warren is serving a 240-month sentence for federal drug and firearms
convictions. On direct appeal, we affirmed his convictions and upheld the district court’s
denial of his motion to suppress evidence from a search of his home. United States v.
Warren, 566 F.3d 1211 (10th Cir. 2009). He filed a motion to vacate his convictions
under 28 U.S.C. § 2255, which the district court denied. This court denied his request for
a certificate of appealability. United States v. Warren, 393 F. App’x 567 (10th Cir.
2010).
On four occasions, this court has denied Mr. Warren authorization to bring a
second or successive motion under § 2255 to pursue the argument (or a similar one) that
he tries to make here.3
Mr. Warren’s § 2241 application in this proceeding claims he is actually innocent
because the drug evidence underlying his convictions was seized during a warrantless
search that violated the Colorado Constitution. The district court denied his application
because Mr. Warren did not show that his claim qualified for consideration under § 2241.
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. Eldridge v.
Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015).
3
See orders entered on (1) January 7, 2011 in 10-1561; (2) January 20, 2015 in 15-
1012; (3) March 13, 2015 in 15-1066; and (4) April 29, 2015 in 15-1145.
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2. Legal Background
As the district court correctly explained, a federal prisoner “claiming the right to
be released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States” may file a motion to “vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). This motion must be filed “in the district
court where sentence was imposed.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir.
2010).
A § 2255 motion is ordinarily the only means to challenge the validity of a federal
conviction following the conclusion of direct appeal. Brace v. United States, 634 F.3d
1167, 1169 (10th Cir. 2011). But “in rare instances,” Sines, 609 F.3d at 1073, a prisoner
may attack his underlying conviction by bringing a § 2241 habeas corpus application
under the “savings clause” in § 2255(e). Brace, 634 F.3d at 1169. That clause provides:
An application for a writ of habeas corpus [(§ 2241)] in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this section
[(§ 2255)], shall not be entertained if it appears that the applicant has failed
to apply for relief, by motion, to the court which sentenced him, or that
such court has denied him relief, unless it also appears that the remedy by
motion [(§ 2255)] is inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255(e).
Thus, a federal prisoner may file a § 2241 application challenging the validity of
his sentence only if § 2255 is “inadequate or ineffective to test the legality of his
detention.” Abernathy v. Wandes, 713 F.3d 538, 547 (10th Cir. 2013) (quotations
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omitted).4 The application must be brought “in the district where the prisoner is
confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The prisoner bears the
burden of showing he satisfies § 2255(e). Abernathy, 713 F.3d at 549. Mr. Warren has
not done so.
3. Analysis
Mr. Warren’s § 2241 application was properly dismissed for several reasons.
First, Mr. Warren bases his application on an alleged violation of state law—the
Colorado Constitution. But “federal habeas corpus relief does not lie for errors of state
law.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (quotations omitted). “Federal
habeas review is not available to correct state law evidentiary errors. . . . [An applicant]
is entitled to relief only if an alleged state-law error was so grossly prejudicial that it
fatally infected the trial and denied the fundamental fairness that is the essence of due
process.” Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012) (alterations and
quotations omitted).
4
The principal purpose of a § 2241 application is to challenge the execution,
rather than the validity, of a federal prisoner’s sentence. Cleaver v. Maye, 773 F.3d 230,
232 (10th Cir. 2014). If, for instance, a prisoner seeks to challenge certain “matters that
occur at prison, such as deprivation of good-time credits and other prison disciplinary
matters . . . affecting the fact or duration of the [prisoner’s] custody,” that claim must be
raised in a § 2241 application rather than a § 2255 motion. McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). Mr. Warren’s application does not
implicate this aspect of § 2241.
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Mr. Warren does not frame his argument as a state constitutional violation that
amounts to a violation of federal due process, but even if he has done so implicitly, his
application fails for the ensuing reasons.
Second, when this court affirmed Mr. Warren’s conviction on direct appeal, it not
only held that the warrantless search of his residence did not violate the Fourth
Amendment, it also held that “the search of Mr. Warren’s home complied with Colorado
law.” Warren, 566 F.3d at 1218. This shows that Mr. Warren’s § 2241 issue—which
challenges the search under the Colorado Constitution—was either raised or could have
been raised on direct appeal.
In either event, he was procedurally barred from raising it in a § 2255 motion.
“Absent an intervening change in the law of a circuit, issues disposed of on direct appeal
generally will not be considered on a collateral attack by a motion pursuant to § 2255.”
United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). “When a defendant fails
to raise an issue on direct appeal, he is barred from raising the issue in a § 2255
proceeding, unless he establishes either cause excusing the procedural default and
prejudice resulting from the error or a fundamental miscarriage of justice if the claim is
not considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).5
5
See United States v. Warner, 23 F.3d 287, 289 (10th Cir. 1994) (“[T]he issues
Defendant raised in his § 2255 motion had either been decided on direct appeal or should
have been raised on direct appeal and were therefore procedurally barred.”). But see
United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc) (holding that
this procedural bar rule does not apply to claims of ineffective assistance of counsel).
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Mr. Warren is procedurally barred from federal habeas relief because he either
(1) already raised his claim on direct appeal or (2) could have raised it then and has not
established cause or prejudice here. As we said recently, a “procedural bar does not
render § 2255 ‘inadequate or ineffective’ under § 2255(e).” Hale v. Fox, 829 F.3d 1162,
1171 (10th Cir. 2016). And that means Mr. Warren cannot bring this claim in a § 2241
application.
Third, Mr. Warren cannot overcome the procedural bar, bypass § 2255(e), and
obtain § 2241 review by labeling his claim as one of “actual innocence.” For one thing,
he mischaracterizes his claim. Challenging the search and seizure of the drug evidence,
even if successful, would not show actual innocence—that he did not commit the drug
offense. It would instead show certain evidence should not have been admitted at trial.
As Mr. Warren points out in his brief, Aplt. Br. at 2, “‘actual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998).
Further, a prisoner can establish actual innocence in post-conviction proceedings
only by bringing forward new exculpatory evidence. See McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013); Schlup v. Delo, 513 U.S. 298, 324 (1995) (stating the prisoner
must “support his allegations of constitutional error with new reliable evidence . . . that
was not presented at trial”). Mr. Warren has presented no new evidence affirmatively
demonstrating he is innocent of the charged crimes. See United States v. Cervini, 379
F.3d 987, 991-92 (10th Cir. 2004) (citing Schlup, 513 U.S. at 328); Brian R. Means,
Federal Habeas Manual § 9B:80 (May 2017 update).
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Even if the actual innocence gateway were a valid basis for bypassing § 2255(e),
therefore, it would not be available to Mr. Warren because he fails to present new
evidence showing he did not commit the drug offense. In short, he does not make a post-
conviction actual innocence claim.
4. Conclusion
We affirm the district court’s judgment dismissing Mr. Warren’s § 2241 claim.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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