FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 1, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
GREGORY D. CROSBY, a/k/a
Gregory D. Cosby,
Petitioner - Appellant,
No. 20-1288
v. (D.C. No. 1:20-CV-01191-LTB-GPG)
(D. Colo.)
BILL TRUE, Warden,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
_________________________________
Pro se federal prisoner Gregory D. Crosby appeals the dismissal of his Amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241.1 Exercising
*
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 This order and judgment is not binding precedent,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
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).
jurisdiction under 28 U.S.C. 1291, we affirm. We also deny his request to proceed in
forma pauperis (“ifp”).2
I. BACKGROUND
In 2014, this court affirmed the denial of a previous § 2241 application that Mr.
Crosby filed in 2013 regarding the same conviction he is challenging here. Crosby v.
Oliver, 561 F. App’x 754 (10th Cir. 2014) (unpublished). Our decision set forth
procedural and legal background that is relevant to this appeal:
Mr. Crosby was convicted of attempted bank robbery
under 18 U.S.C. § 2113(a) and giving false information under
18 U.S.C. § 1038. We affirmed his conviction on direct
appeal. See United States v. Crosby, 416 Fed.Appx. 776,
777–78 (10th Cir.2011). He moved for relief under 28 U.S.C.
§ 2255, but the district court denied his motion, and we
denied a certificate of appealability and dismissed the appeal.
See United States v. Crosby, 468 Fed.Appx. 913 (10th
Cir.2012). He filed a motion for new trial, which the district
court construed as a second § 2255 motion and denied. We
again denied a certificate of appealability and dismissed the
appeal. See United States v. Crosby, 515 Fed.Appx. 771
(10th Cir.2013). He now seeks relief under 28 U.S.C. § 2241.
“A petition brought under 28 U.S.C. § 2241 typically
attacks the execution of a sentence rather than its validity and
must be filed in the district where the prisoner is confined.”
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir.2011)
(internal quotation marks omitted). “A § 2255 motion, on the
other hand, is generally the exclusive remedy for a federal
prisoner seeking to attack the legality of detention, and must
be filed in the district that imposed the sentence.” Id.
(brackets and internal quotation marks omitted). But the
2
Because Mr. Crosby appears pro se “we liberally construe his filings, but we will
not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
2
“so-called savings clause of § 2255” permits a federal
prisoner to proceed under § 2241 in the rare circumstance
when a § 2255 motion provides “an inadequate or ineffective
remedy to challenge a conviction.” Id. (internal quotation
marks omitted); see 28 U.S.C. § 2255(e). “The petitioner
bears the burden of demonstrating that the remedy in § 2255
is inadequate or ineffective.” Brace, 634 F.3d at 1169.
Id. at 755. We affirmed because Mr. Crosby wished to contest a jury instruction—a
challenge to his conviction, not to the execution of his sentence. Id. We rejected his
arguments that a § 2255 motion provided an inadequate or ineffective remedy. Id. at
755-56.
Earlier this year, Mr. Crosby filed the § 2241 application underlying this appeal.
He claimed that the “[t]rial court erred when the $3,000 was not mentioned during trial.
This matter comes on petitioner[’s] claim that the original court fail[ed] to hear evidence
relating to $3,000.00 not being mentioned.” ROA at 80. His application further referred
to “the fact of $3,000.00 dollar not recover[ed] or found in the vehicle.” Id. at 84. He
alleged that “[§] 2255 has been inadequate and ineffective to prove his innocence.” Id. at
86. In short, he challenges his conviction because the trial court failed to mention that the
money he was convicted of attempting to rob from a bank was not found.
The district court denied Mr. Crosby’s § 2241 application and dismissed for lack
of statutory jurisdiction. It adopted the magistrate judge’s recommendation, which
determined that Mr. Crosby had failed to show that a § 2255 motion was inadequate or
ineffective. Id. at 109-10; see id. at 97-99 (magistrate judge’s recommendation).
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II. DISCUSSION
“When reviewing the denial of a habeas petition under § 2241, we review the
district court’s legal conclusions de novo and accept its factual findings unless clearly
erroneous.” al–Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013).
A § 2255 motion is ordinarily the only means to challenge the validity of a federal
conviction following the conclusion of direct appeal. Brace, 634 F.3d at 1169. Under a
narrow exception in § 2255(e), the “savings clause,” a federal prisoner may file a § 2241
application challenging the validity of his conviction only if a § 2255 motion is
“inadequate or ineffective to test the legality of his detention.” Abernathy v. Wandes,
713 F.3d 538, 547 (10th Cir. 2013) (quoting 28 U.S.C. § 2255(e)). In Prost v. Anderson,
636 F.3d 578 (10th Cir. 2011), this court stated the rule to challenge a conviction under
§ 2241: “The relevant metric or measure, we hold, is whether a petitioner’s argument
challenging the legality of his detention could have been tested in an initial § 2255
motion. If the answer is yes, then the petitioner may not resort to the savings clause and
§ 2241.” Id. at 584.3
Mr. Crosby has failed to show that § 2255(e) applies. The magistrate judge’s
recommendation correctly explained that Mr. Crosby’s having sought and been denied
§ 2255 relief does not show that § 2255 is inadequate or ineffective. See Bradshaw v
3
In his brief, Mr. Crosby urges this court to “[r]evisit the Prost test.” Aplt. Br. at
9. But “[u]nder the doctrine of stare decisis, this panel cannot overturn the decision of
another panel of this court . . . absent en banc reconsideration or a superseding contrary
decision by the Supreme Court.” United States v. Meyers, 200 F.3d 715, 720 (10th Cir.
2000).
4
Story, 86 F.3d 164, 166 (10th Cir. 1996). Further, Mr. Crosby’s having previously been
barred from bringing a second or successive § 2255 motion also does not satisfy
§ 2255(e). See Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999) (citing United
States v. O’Bryant, No. 98-1179, 1998 WL 704673, at *2 (10th Cir. Oct. 2, 1998)
(unpublished)).
Mr. Crosby’s innocence assertion is unavailing. A prisoner can establish actual
innocence in post-conviction proceedings only by bringing forward new exculpatory
evidence. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (citing House v. Bell, 547
U.S. 518, 538 (2006); Schlup v. Delo, 513 U.S. 298, 329 (1995)). Mr. Crosby has
produced no new evidence. Nor has he otherwise presented meritorious arguments to
challenge the district court’s dismissal.
III. CONCLUSION
We affirm the district court’s judgment. We deny Mr. Crosby’s motion to proceed
ifp.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
5