Johnson v. Hudson

Appellate Case: 21-3141 Document: 010110678997 Date Filed: 05/03/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 3, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
DERRICK JOHNSON,

Petitioner - Appellant,

v. No. 21-3141
(D.C. No. 5:21-CV-03144-JWL)
DONALD HUDSON, Warden, USP - (D. Kan.)
Leavenworth,

Respondent - Appellee.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________

Pro se petitioner Derrick Johnson, a prisoner in federal custody, moved for

habeas relief under 18 U.S.C. § 2241, to challenge his conviction. He argued the

Northern District of Texas, the district of his conviction, “refused to abide by

Supreme Court precedent under McWilliams v. Dunn, 137 S.Ct. 1790 (2017)[,]

regarding access to expert assistance,” making his conviction unlawful. The District

of Kansas, the district of Petitioner’s confinement, dismissed the petition without

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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prejudice for lack of statutory jurisdiction. Petitioner then filed a motion for

reconsideration, which the District of Kansas construed as a Rule 59(e) motion and

denied because Petitioner did not show his actual-innocence claim entitled him to

proceed under 28 U.S.C. § 2255(e) or that the remedy under § 2255 was inadequate

or ineffective to test the legality of his detention. Our jurisdiction arises under 28

U.S.C. § 1291. We affirm.

I.

After a jury found Petitioner guilty of bank robbery under 18 U.S.C. § 2113(a),

the United States District Court for the Northern District of Texas sentenced him to

132 months’ incarceration. United States v. Johnson, Case No. 3-16-cr-00349 (N.D.

Tex.). Petitioner appealed, and the Fifth Circuit affirmed his conviction and

sentence. United States v. Johnson, 822 F. App’x 258, 263 (5th Cir. 2020) (per

curiam) (unpublished).

Before trial, Petitioner filed an opposed motion seeking funds to retain a

psychiatrist to evaluate his sanity at the time of the offense and a notice of intent to

assert an insanity defense. Id. at 259. Before the district court resolved that motion,

the government moved for a pretrial psychological examination. Id. The district

court granted the government’s motion, and a Bureau of Prisons psychologist

examined Petitioner. Id. She concluded that no severe mental disease or defect

rendered Petitioner unable to appreciate the nature and quality or wrongfulness of his

actions at the time of the offense. Id. The magistrate judge then denied Petitioner’s

request for funds to retain two experts—a psychologist and a licensed professional

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counselor—because Petitioner had not established that “the services of a psychologist

were necessary for his defense.” Id.

The Fifth Circuit determined that even if the district court incorrectly denied

Petitioner’s motion for funds, that decision “could not have affected the outcome of

his proceedings,” given the “voluminous evidence of [Petitioner’s] guilt presented at

trial[.]” Id. at 261. This evidence included still photographs of Petitioner

committing the bank robbery from videotaped footage, the robbery note, Petitioner’s

possession of the bank’s stolen cash when arrested, Petitioner’s admission to

investigators and a mental-health counselor that he robbed the bank, and Petitioner’s

commission of the robbery one day after finishing his prior bank-robbery sentence.

Id.

Later, Petitioner, now an inmate at USP-Leavenworth, sought habeas relief

under 28 U.S.C. § 2241 in the District of Kansas. Johnson v. Hudson, No. 21-3144-

JWL, 2021 WL 2778468, at *1 (D. Kan. July 2, 2021). Petitioner argued that the

Fifth Circuit “affirmed without addressing the merits of his claim that Supreme Court

precedent mandated access to expert assistance” as required by McWilliams, 137 S.

Ct. 1790. Id. He also challenged the validity of his conviction or sentence as

imposed but admitted he never filed a 28 U.S.C. § 2255 motion. Id. He explained

that § 2255 was inadequate or ineffective to challenge his conviction or sentence

because “[i]ssues not addressed on direct appeal are barred from being raised in a

§ 2255 proceeding.” Id. The district court determined Petitioner failed to show that

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§ 2255 was inadequate or ineffective and dismissed the petition without prejudice for

lack of statutory jurisdiction. Id. at *3.

Within twenty-eight days of the court’s order dismissing his petition,

Petitioner moved for reconsideration. Johnson v. Hudson, No. 21-3144-JWL, 2021

WL 3129424, at *1 (D. Kan. July 23, 2021). The district court construed it as a

motion under Rule 59(e) and denied it because Petitioner brought forth no new

evidence to prove his actual-innocence claim entitled him to proceed under

§ 2255(e). Id. at *1–3. And he failed to show that § 2255 is inadequate or

ineffective to test the legality of his detention because a procedural bar does not

render § 2255 inadequate or ineffective. Id. at *2–3. Petitioner appeals.

II.

We review de novo the district court’s dismissal of Johnson’s petition for lack

of jurisdiction. Sandusky v. Goetz, 944 F.3d 1240, 1246 (10th Cir. 2019) (citing

United States v. Luna-Acosta, 715 F.3d 860, 864 (10th Cir. 2013); Palma-

Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012)).

Section 2241 provides “[t]he writ of habeas corpus shall not extend to a

prisoner unless . . . [h]e is in custody under or by color of the authority of the United

States” or “is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241(c)(1), (3). “Petitions under § 2241 are used to attack

the execution of a sentence . . . .” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811

(10th Cir. 1997) (citation omitted). The execution of a sentence may cover challenges to

prison disciplinary proceedings, such as the deprivation of good-time credits, or matters

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“affecting the fact or duration of the petitioner’s custody,” but not challenges to prison

conditions. Id. at 812 (“Section 2241 actions are not used to challenge prison conditions

such as ‘insufficient storage locker space . . . and yes, being served creamy peanut butter

. . . .”) (citation omitted)). “[I]n contrast, . . . § 2254 habeas and § 2255 proceedings . . .

are used to collaterally attack the validity of a conviction and sentence.” Id. at 811

(citation omitted). Section 2255 provides:

A prisoner in custody under sentence of a court established by
Act of Congress 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 sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the
sentence.

28 U.S.C. § 2255(a). “[F]ederal prisoners challenging the validity of their convictions or

sentences may seek and win relief only under the pathways prescribed by § 2255.” Prost

v. Anderson, 636 F.3d 578, 580 (10th Cir. 2011). Congress created a single exception to

that 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.’” Id. (quoting 28 U.S.C. § 2255(e)). But § 2255 is “inadequate or ineffective”

only in “extremely limited circumstances.” Abernathy v. Wandes, 713 F.3d 538, 547

(10th Cir. 2013) (quoting Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999))

(citing Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011)). If “a petitioner’s

argument challenging the legality of his detention could have been tested in an initial

§ 2255 motion[,] . . . then the petitioner may not resort to [§ 2255(e)’s] savings clause

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and § 2241.” Id. (quoting Prost, 636 F.3d at 584). A procedural bar preventing a

petitioner from raising matters in § 2255 does not render § 2255 “inadequate or

ineffective” under § 2255(e). Hale v. Fox, 829 F.3d 1162, 1171 (10th Cir. 2016)

(citations omitted).

III.

Petitioner argues the district court erred by dismissing his § 2241 petition

because: (1) the Northern District of Texas’s denial of his request for funds to retain

two mental-health experts (and the Fifth Circuit’s affirmance of that denial)

contradicted McWilliams, 137 S.Ct. at 1794; (2) § 2255(e)’s savings clause applies

because § 2255’s remedy is “inadequate or ineffective to test the legality of his

detention”; and (3) § 2241 is the proper vehicle because he is not challenging his

conviction but arguing his “confinement due to that conviction is in absolute

violation of ‘clearly established federal law.’” But as a threshold matter, we must

determine whether Petitioner has satisfied § 2255(e)’s savings-clause test, permitting

him to proceed under § 2241, because if he has not, then we “lack[] statutory

jurisdiction to hear his habeas claim[].” Abernathy, 713 F.3d at 557 (citations

omitted).

“[I]t is the infirmity of the § 2255 remedy itself, not the failure to use it or to

prevail under it, that is determinative.” Prost, 636 F.3d at 589. “To invoke the

savings clause, there must be something about the initial § 2255 procedure

that itself is inadequate or ineffective for testing a challenge to detention.” Id. “The

savings clause doesn’t guarantee results, only process.” Id. at 590. And wrongfully

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denying relief “does not render the procedural mechanism Congress provided for

bringing that claim . . . an inadequate or ineffective remedial vehicle for testing its

merits within the plain meaning of the savings clause.” Id.

Petitioner spends much of his brief contending that the Northern District of

Texas and the Fifth Circuit erred by denying his request for funds to retain two

mental-health experts and affirming that denial. But even if those courts erred,

“[a]bsent 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) (citing United

States v. Nolan, 571 F.2d 528, 530 (10th Cir. 1978)). Petitioner does not assert there

was an intervening change in law—he argues only the Northern District of Texas and

Fifth Circuit’s decisions contradict McWilliams, 137 S.Ct. at 1794. Thus, he could

not bring that claim in a § 2255 motion. And that “procedural bar does not render

§ 2255 ‘inadequate or ineffective’ under § 2255(e).” Hale, 829 F.3d at 1171 (citing

Zelaya v. Sec’y, Fla. Dep’t of Corr., 798 F.3d 1360, 1370 (11th Cir. 2015); Ivy v.

Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003)). We therefore lack statutory

jurisdiction to hear his claim.

Even so, Petitioner contends § 2255(e)’s savings clause applies because

“absolutely no ‘procedural bar’ can supersede the individual rights established under

the Constitution” and the Northern District of Texas and Fifth Circuit’s failure to

follow McWilliams renders his conviction and sentence invalid. But “[i]t is

[Petitioner’s] burden to show that he meets § 2255(e)’s savings clause.” Abernathy,

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713 F.3d at 549 (citing Prost, 636 F.3d at 584). And his statement that no procedural

bar can prevent him from asserting his claim in a § 2241 petition, without citation to

any authority, does not satisfy his burden.

The Fifth Circuit considered and resolved Petitioner’s claim on direct appeal,

and our precedent makes clear that once a court determines a claim on direct appeal,

a petitioner cannot ordinarily bring it again in a § 2255 motion. Hale, 829 F.3d at

1171 (citing Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (“A § 2255

motion is neither a recapitulation of nor a substitute for a direct appeal. Issues that

were raised on direct appeal may not be reconsidered on a § 2255 motion absent

changed circumstances.”)). That procedural bar does not render § 2255 “inadequate

or ineffective” under § 2255(e), id. (citations omitted), even if the Fifth Circuit’s

decision displeases Petitioner. Thus, the District of Kansas properly dismissed

without prejudice Petitioner’s § 2241 petition for lack of statutory jurisdiction.1

AFFIRMED.

Entered for the Court

Joel M. Carson III
Circuit Judge

1
In light of the panel’s decision in this order and judgment, Petitioner’s two
pending motions to expedite filed on October 18, 2021, and February 22, 2022, are
denied as moot.
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