FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 2, 2014
Elisabeth A. Shumaker
Clerk of Court
JAMES F. CLEAVER,
Petitioner - Appellant, No. 14-3213
(D.C. No. 5:14-CV-03182-RDR)
v. (D. Kan.)
CLAUDE MAYE,
Respondent - Appellee.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
I. BACKGROUND
Pro se appellant James Cleaver is serving a 400-month prison term in Kansas,
having been convicted and sentenced in the U.S. District Court for the District of
Colorado in 2003 for destroying government property by fire, forcibly interfering with
IRS employees and administration, suborning perjury, and tampering with a witness. We
* After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
affirmed his convictions and sentence. See United States v. Cleaver, 163 F. App’x 622
(10th Cir. 2005) (unpublished).
After his direct appeal, Mr. Cleaver filed a 28 U.S.C. § 2255 motion in Colorado
federal court alleging ineffective assistance of appellate counsel. It was denied. This
court denied Mr. Cleaver a certificate of appealability (“COA”). United States v.
Cleaver, 236 F. App’x 359 (10th Cir. 2007) (unpublished). He followed with an
unsuccessful attempt to file a second or successive § 2255 motion.
In 2009, Mr. Cleaver moved unsuccessfully under Fed. R. Civ. P. 60(b)(6) in the
Colorado federal district court to challenge the denial of his original § 2255 motion. He
argued the court ruled on that motion before he had received the Government’s response,
thereby precluding his ability to file a reply. We again denied a COA, explaining that
Mr. Cleaver “could have asserted, but did not assert, the procedural objections of which
he now complains” in post-judgment motions and on direct appeal from the denial of his
§ 2255 motion, and “he cannot now argue that he is entitled to relief from the district
court’s judgment under Rule 60(b)(6).” United States v. Cleaver, 319 F. App’x 728, 730-
31 (10th Cir. 2009) (unpublished).
Mr. Cleaver next applied for a writ of habeas corpus under 28 U.S.C. § 2241 in the
U.S. District Court for the District of Kansas,1 making the same argument as in his Rule
60(b)(6) motion in the Colorado federal court—that his § 2255 motion was denied before
1
To bring his petition under § 2241, Mr. Cleaver relied on the “savings clause” of
28 U.S.C. § 2255(e). We provide background on the “savings clause” later in our
discussion.
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the Government’s response to that motion was filed. The court dismissed his application
for lack of jurisdiction. Cleaver v., Maye, No. 5:13-cv-3041-RDR (D. Kan. Sept. 17,
2013).
Mr. Cleaver again applied for habeas relief under § 2241 on the same ground as
before, and again the Kansas federal district court dismissed. Cleaver v., Maye, No. 5:14-
cv-3037-RDR (D. Kan. July 3, 2014).
For yet a third time, Mr. Cleaver applied for § 2241 habeas relief on the same
ground.2 The Kansas federal district court again dismissed, explaining that his
application “does not present any ground for relief that has not been considered by the
sentencing court, and rejected in earlier actions in this court as improper under § 2241.”
Cleaver v., Maye, No. 5:14-cv-3182-RDR (D. Kan. Sept. 22, 2014). Mr. Cleaver appeals
from this dismissal.3
2
In his brief to this court, Mr. Cleaver attempts to distinguish his first two § 2241
applications from the third one at issue here. He argues the former claimed “the
sentencing court’s failure to allow a reply under rule 5(d) of the Rules Governing §2255
rendered his § 2255 inadequate.” Aplt. Br. at 5 (underlining in original). His third
application, he explains, claims “the denial of the adversarial process within his § 2255
because of the Respondent’s failure to obey Rule 5(a) of the Federal Rules of Civil
Procedure that made it inadequate.” Id. (underlining in original).
We do not discern a meaningful difference in Mr. Cleaver’s applications.
Although he cites different rules, he has consistently and repeatedly claimed in his Rule
60(b) motion in Colorado and his § 2241 applications in Kansas that the timing of the
Colorado federal district court’s § 2255 ruling—before Mr. Cleaver received the
Government’s response to his § 2255 motion—precluded him from filing a reply and
thereby rendered his § 2255 proceeding inadequate.
3
Federal prisoners are not required to obtain a certificate of appealability in
§ 2241 proceedings. See McIntosh v. U.S. Parole Comm., 115 F.3d 809, 810 n.1 (10th
Cir. 1997).
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II. DISCUSSION
A. Legal Background
A federal prisoner may challenge the legality of his or her underlying conviction
by filing a habeas petition under 28 U.S.C. § 2255. Brace v. United States, 634 F.3d
1167, 1169 (10th Cir. 2011). Prisoners are usually given only one chance to have a
§ 2255 petition considered on the merits. See 28 U.S.C. § 2244; Prost v. Anderson, 636
F.3d 578, 586 (10th Cir. 2011). Second or successive § 2255 petitions, however, are
allowed under certain circumstances, including when there is “newly discovered evidence
that, if proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense.” 28 U.S.C. § 2255(h)(1).
A prisoner may also challenge the execution of his or her sentence by filing a
habeas petition under 28 U.S.C. § 2241. Brace, 634 F.3d at 1169. But a § 2241 petition
generally cannot be used to challenge the validity of the underlying conviction. Id.; see
also Prost, 636 F.3d at 580 (“[P]risoners challenging the validity of their convictions or
sentences may seek and win relief only under the pathways prescribed by § 2255.”).
There is, however, a narrow exception, often referred to as the § 2255 “savings clause”:
a federal prisoner may file a § 2241 petition challenging a conviction only if “the remedy
by motion [under § 2255] is inadequate or ineffective to test the legality of [a movant’s]
detention.” 28 U.S.C. § 2255(e); see also Prost, 636 F.3d at 580. As we said in Prost,
the question 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.
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B. Analysis
After his direct appeal failed, Mr. Cleaver sought habeas relief under § 2255 in the
Colorado federal district court and lost. He contends he may seek relief in the Kansas
federal district court under § 2241 under the “savings clause”—§ 2255(e). But, as Mr.
Cleaver recognizes, see Aplt. Br. at 2, he can do so only in those “extremely limited
circumstances” when § 2255 is considered inadequate or ineffective. Caravalho v. Pugh,
177 F.3d 1177, 1178 (10th Cir. 1999).
Section 2255 is not considered inadequate or ineffective merely because the result
of a § 2255 petition is unsuccessful. Prost, 636 F.3d at 584-85. Also, “[t]he mere fact
[the movant] is precluded from filing a second § 2255 petition does not establish that the
remedy in § 2255 is inadequate.” Caravalho, 177 F.3d at 1179. Instead, the opportunity
to seek a § 2255 remedy must be deemed “genuinely absent” before a petitioner may
properly file a § 2241 petition. Prost, 636 F.3d at 588. For example, the savings clause
may be met when the original sentencing court has been abolished or dissolved and the
petitioner has nowhere to file a § 2255 petition. See Prost, 636 F.3d at 588; see also
Caravalho, 177 F.3d at 1178 (listing cases).
The petitioner bears the burden of showing that the opportunity to seek a remedy
under § 2255 is inadequate or ineffective. Brace, 634 F.3d at 1169. If the petitioner fails
to do so, the court lacks jurisdiction to consider the petition on the merits. See id. at
1170. That is the case here. Mr. Cleaver has not shown that he lacked an opportunity to
bring his ineffective assistance of counsel claim in his § 2255 proceeding or to argue the
proceeding was procedurally inadequate.
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Mr. Cleaver filed his original § 2255 motion alleging ineffective assistance. After
the Colorado federal district court denied his motion and we denied a COA, Mr. Cleaver
filed a motion under Fed. R. Civ. P. 60(b)(6), complaining to the Colorado district court
that it ruled before he received the Government’s response and before he could reply to
that response. The court considered and denied the Rule 60(b)(6) motion. Mr. Cleaver
disagrees with that ruling, but he has not and cannot show that he lacked the opportunity
to have that issue considered in the § 2255 proceeding or on direct appeal from that
proceeding. Indeed, we already said as much five years ago in Cleaver, 319 F. App’x at
730-31. And so has the Kansas federal district court on Mr. Cleaver’s previous two
§ 2241 applications.
The Kansas federal district court correctly dismissed the § 2241 application for
lack of jurisdiction.
III. CONCLUSION
Because the district court did not have jurisdiction, we affirm the dismissal of Mr.
Cleaver’s application under 28 U.S.C. § 2241 for a writ of habeas corpus.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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