United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner in federal custody at
USP-Leavenworth, proceeds pro se. The Court has screened his
Petition (Doc. 1) under Rule 4 of the Rules Governing Habeas
Corpus Cases, foll. 28 U.S.C. § 2254, and dismisses this
action for the following reasons.
was sentenced by Judge Roger L. Hunt in the U.S. District
Court for the District of Nevada on October 2, 2008, after
pleading guilty on May 28, 2008. USA v. Ali, Case
No. 2:06-cr-00160-APG-RJJ (D. Nev.) (Docs. 63, 68).
Petitioner appealed the judgment on October 8, 2008, and the
Ninth Circuit Court of Appeals dismissed the appeal “in
light of the valid appeal waiver” on June 2, 2009.
Id. at Docs. 72, 84. On June 2, 2010, Petitioner
filed a motion under § 2255. Id. at Doc. 95.
Judge Hunt denied the § 2255 motion on November 17,
2010. Id. at Doc. 106. Petitioner appealed the
dismissal of his § 2255 motion, and the Ninth Circuit
Court of Appeals denied his request for a certificate of
appealability on December 20, 2011. Id. at 114.
Petitioner filed a motion to set aside judgment, which was
denied by Judge Hunt, and affirmed by the Ninth Circuit.
Id. at Doc. 135.
unsuccessful § 2255 motion, Petitioner “raised 19
issues related to Ineffective Assistance of Counsel, and the
fact [he] was not competent to enter a plea after being
forced to remain in ‘solitary confinement' for
almost two years, nearly 24 hours a day, while suffering from
schizophrenia.” (Doc. 1, at 4.) In this action,
Petitioner challenges the validity of his sentence as
imposed. Petitioner claims actual innocence; ineffective
assistance of counsel; his guilty plea was not knowingly,
voluntarily and intelligently entered into; and cumulative
trial errors. Petitioner alleges that the remedy under §
2255 is inadequate “because in 2011 Petitioner filed a
judicial misconduct complaint . . . against sentencing judge
Roger L. Hunt who was finally recused from [his] federal case
in 2016.” (Doc. 1, at 5.)
federal prisoner seeking release from allegedly illegal
confinement may file a motion to “vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). A
motion under § 2255 must be filed in the district where
the petitioner was convicted and sentence imposed. Sines
v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010). This
remedy is normally the only means to challenge a federal
conviction after the direct appeal is resolved. Brace v.
United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
However, under the “savings clause” in §
2255(e), a federal prisoner may file an application for
habeas corpus under 28 U.S.C. § 2241 in the district of
confinement if the petitioner demonstrates that the remedy
provided by § 2255 is “inadequate or ineffective
to test the legality of his detention.” 28 U.S.C.
has not shown a compelling reason that might justify the use
of § 2241 to test the legality of his confinement.
“Only in rare instances will § 2255 fail as an
adequate or effective remedy to challenge a conviction or the
sentence imposed.” Sines, 609 F.3d at 1073. A
petitioner does not present one of these rare instances
“simply by asserting his ability to file a § 2255
motion is barred by timing or filing restrictions.”
Crawford v. United States, 650 F. App'x 573, 575
(10th Cir. 2016) (unpublished) (citing Sines, 609
F.3d at 1073; Haynes v. Maye, 529 F. App'x 907,
910 (10th Cir. 2013) (unpublished) (noting fact that §
2255 motion is time-barred doesn't render § 2255
remedy inadequate or ineffective); Garris v.
Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986) (“It
is the inefficacy of the [§ 2255] remedy, not a personal
inability to utilize it, that is determinative, and
appellant's difficulty here is simply that his
circumstances preclude him from invoking it.”).
suggests that his remedy under § 2255 is inadequate
because the sentencing judge, Judge Roger L. Hunt, was biased
and did not recuse until 2016. Courts have held that a
petitioner's suggestion of judicial bias is not
sufficient to find that § 2255 is inadequate or
ineffective to test the legality of a petitioner's
Kapordelis v. Fox, petitioner invoked the saving
clause in § 2255(e), arguing that his initial §
2255 proceedings were inadequate or ineffective to test the
legality of his conviction and sentence “because the
district judge who presided over his § 2255 proceedings
was biased against him and refused to rule on a recusal
motion filed by Kapordelis.” Kapordelis v.
Fox, 2017 WL 3867809, at *2 (10th Cir. Sept. 5, 2017)
(unpublished decision). The Tenth Circuit noted that
“the circumstances described in § 2255(e) are
extremely limited” and it is “the prisoner's
burden to show that these conditions . . . apply to his
case.” Id. at *3 (citing Caravalho v.
Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999); Prost v.
Anderson, 636 F.3d 578, 584 (10th Cir. 2011)). The Tenth
Circuit stated that:
In Prost, we held that “[t]he relevant metric
or measure” in applying the savings clause of §
2255(e) “is whether a petitioner's argument
challenging the legality of his detention could have been
tested in an initial § 2255 motion.” 636 F.3d at
584. “If a petitioner's argument challenging the
legality of his detention could've been tested
in a § 2255 motion, the clause is satisfied.”
Id. (emphasis in original). “In this way, the
clause is concerned with process-ensuring the petitioner an
opportunity to bring his argument-not with
substance-guaranteeing nothing about what the
opportunity promised will ultimately yield in terms
of relief.” Id. (emphasis in original). In
other words, “[t]he ultimate result may be right or
wrong as a matter of substantive law, but the savings clause
is satisfied so long as the petitioner had an opportunity to
test his claim.” Id. at 585.
Tenth Circuit rejected Kapordelis's attempt to rely on
the savings clause, finding that he was not deprived of the
adequate and effective opportunity to test the legality of
his detention in his initial § 2255 motion, where he had
raised the bias claims in a prior § 2241 action and in
his § 2255 proceeding, and the Eleventh Circuit affirmed
his conviction and sentence on direct appeal. Id.;
see also Meltcalf v. Masters, 2015 WL 5031614, at *3
(S.D.W.V. Aug. 6, 2015) (“The fact that these claims
were unsuccessfully raised in the petitioner's prior
federal proceedings, notwithstanding his contentions that the
Michigan district court and the Sixth Circuit are
‘biased, ' is not a sufficient basis upon which to
find that section 2255 is ‘inadequate' or
‘ineffective' to test the legality of the
petitioner's detention.”), adopted 2015 WL
5031557 (S.D.W.V. Aug. 25, 2015), aff'd 633 F.
App'x 586 (4th Cir. Feb. 26, 2016); Barnett v.
Ebbert, 535 F. App'x 70, 72 (3rd Cir. 2013) (alleged
judicial bias does not render section 2255 inadequate or
ineffective and is not a basis for a section 2241 petition)).
Petitioner's case, it does not appear that he raised the
issue by filing a motion for recusal or otherwise raised the
issue in his direct appeal or § 2255
motion. However, nothing suggests that he did not
have the opportunity to test the claim like
the petitioner in Kapordelis. In Tripati v.
Henman, the Ninth Circuit found that § 2255 was not
inadequate or ineffective because of judicial bias where
“[a]ppellant has a remedy available by way of a motion
for recusal or disqualification of biased judges that would
make a section 2255 motion . . . an effective remedy even if
his allegations of bias are true and sufficient.” 843
F.2d 1160, 1163 (9th Cir. 1988) (citing Rule 4(a) Advisory
Committee's Note, 28 U.S.C. foll. § 2255 (“A
movant is not without remedy if he feels [that having the
trial judge hear his section 2255 motion] is unfair to him.
He can file an affidavit of bias. And there is the right to
appellate review if the trial judge refuses to grant his
motion.”), cert. denied488 U.S. 982 (1988);
see also Bradshaw v. Story, 86 F.3d 164, 167 ...