United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter comes before the court on petitioner's Writ of
Habeus Corpus under 28 U.S.C. § 2241. On January 12,
2018 this court dismissed petitioner's Fed.R.Civ.Pr.
60(b) motion to set aside judgment after finding it to be an
attack on his conviction and, as such, an unauthorized
successive motion under 28 U.S.C. § 2255. No.
12-10174-JTM, Dkt. 274. Grigsby appealed that decision and
the Tenth Circuit affirmed denying issuing a Certificate of
Appealability (COA). Id., Dkt. 288. On May 31, 2018
petitioner filed this writ, pursuant to U.S.C § 2241,
claiming the court erred in dismissing his Rule 60 argument.
Petitioner then proceeds to repeat his argument challenging
the sufficiency of the indictment under which he was
originally charged, the same argument the Tenth Circuit
rejected as a successive § 2255 motion.
is the substance of the pleading, not its title that
determines whether it is a second or successive petition for
habeas relief.” McKnight v. Dinwiddie, 362
Fed.Appx. 900, 903 (10th Cir. 2010) (unpublished)
(citing Gonzales v. Crosby, 545 U.S. 524, 431-32
(2005). “Any motion filed in the district court that
imposed the sentence, and substantively within the scope of
[§2255], is a motion under § 2255, no matter what
title” the petitioner gives the motion. Trenkler v.
United States, 536 F.3d 85, 97 (1st Cir.
2008) (quoting Melton v. United States, 359 F.3d
855, 857 (7th Cir. 2004) (emphasis in original).
Grigsby's attack on the indictment in his latest motion
is in substance a motion for relief under § 2255.
§ 2255 motion is one ‘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,
or that the court was without jurisdiction to impose such a
sentence…or is otherwise subject to collateral
attack.'” United States v. Nelson, 465
F.3d 1145, 1148 (10th Cir. 2006) (quoting 28
U.S.C. § 2255(a)). “It is the relief sought, not
[the] pleading's title, that determines whether the
pleading is a § 2255 motion.” Id. At
1149. Here, by repeating his earlier argument attacking his
conviction, petitioner's writ is another unauthorized and
successive § 2255 motion.
the defendant has not received permission from the Tenth
Circuit to file a second or successive motion, the court has
no jurisdiction to address the merits of this motion.
see 28 U.S.C. § 2244 (b)(3)(a). As such, the
court, in its discretion, may either: (1) transfer the motion
to the Tenth Circuit for review; or (2) dismiss the motion.
Trujillo v. Williams, 465 F.3d 1210, 1222-23
(10th Cir. 2006). Because petitioner's motion
presents no new evidence or retroactive rule of
constitutional law, the court in its discretion dismisses the
motion rather than transferring it to the Tenth Circuit.
See In re Cline, 531 F.3d 1249, 1252
(10th Cir. 2008); Phillips v. Seiter, 173
F.3d 609, 610 (7th Cir. 1999).
the court considered the petitioner's § 2241 motion
before it valid, relief still would not be warranted. Federal
prisoners challenging the validity of their convictions or
sentences may seek relief only under the pathways prescribed
by § 2255. There is one exception to this rule, a
federal prisoner may resort to § 2241 to contest his
conviction if, but only if, the § 2255 remedial
mechanism is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e).
And that exception doesn't apply here. Petitioner was
free to bring an argument challenging the sufficiency of the
indictment in his initial § 2255 motion, and an initial
§ 2255 motion offered him an adequate and effective
means for testing that argument. The fact that § 2255
bars petitioner from bringing his argument now, in a second
§ 2255 motion, does not mean the § 2255 remedial
process was ineffective or inadequate to test his argument.
It just means he waited too long to raise it. Prost v.
Anderson, 636 F.3d 578, 580 (10th Cir. 2011).
second § 2255 motion is permissible only if there is
newly discovered evidence that if proven and viewed in light
of the evidence as a whole would establish by clear and
convincing evidence that no reasonable fact finder would have
found defendant guilty of the offense, or there has been a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable. 28 U.S.C. § 2255(h).
the defendant has not received authorization from the Tenth
Circuit, and his claims are not premised on either newly
discovered evidence or a new rule of law made retroactive by
the United States Supreme Court. Under these circumstances,
the defendant's claims do not satisfy the authorization
standards under § 2255, and the Court overrules the
motion rather than transferring it to the Tenth Circuit.
See In re Cline, 531 F.3d at 1252.
court rules adversely to a defendant seeking relief under
§ 2255, under Rule 11 of the Rules Governing Section
2255 Proceedings the court will either grant or deny a
certificate of appealability. A certificate of appealability
may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). A certificate may issue if
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3
(10th Cir. 2004) (quoting Tennard v.
Dretke, 542 U.S. 274, 282 (2004)). As noted above, the
defendant's claim is precluded by the anti-successive
motion provisions of the AEDPA, and accordingly the court
denies a certificate of appealability as to its ruling on
ACCORDINGLY ORDERED this day of July 2018, that the
Petitioner's Writ of Habeus Corpus Under 28 ...