FILED
United States Court of Appeals
Tenth Circuit
March 22, 2013
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
GREGORY A. MILTON,
Petitioner-Appellant,
No. 12-1198
v.
(D.C. No. 1:12-CV-00998-LTB)
(D. Colo.)
CHARLES A. DANIELS,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Gregory A. Milton, pro se, 1 appeals from the district court’s dismissal of
his petition for a writ of habeas corpus under 28 U.S.C. § 2241. 2 We affirm the
*
This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because Mr. Milton is proceeding pro se, his filings are construed
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
2
As a federal prisoner proceeding under § 2241, Mr. Milton “does not
need a certificate of appealability to appeal a district court’s denial of the
petition.” Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); see McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 810 n. 1 (10th Cir. 1997) (“[A] certificate
of appealability under the Antiterrorism and Effective Death Penalty Act of 1996
(continued...)
district court’s dismissal of his § 2241 petition for lack of jurisdiction.
I
Mr. Milton was convicted in the United States District Court for the
Western District of Virginia of conspiracy to traffic in crack cocaine, in violation
of 21 U.S.C. § 846; obstruction of interstate commerce by robbery, in violation of
the Hobbs Act, 18 U.S.C. § 1951; and use of a firearm to commit murder, in
violation of 18 U.S.C. § 924(c). He was sentenced to concurrent life terms on the
conspiracy and Hobbs Act convictions and a consecutive life term on the firearm
charge. The Fourth Circuit affirmed his convictions and sentence on appeal. See
United States v. Milton, 153 F.3d 724, 1998 WL 468812, at *1 (4th Cir. 1998)
(per curiam).
Mr. Milton collaterally challenged his convictions and sentence in the
United States District Court for the Western District of Virginia under 28 U.S.C.
§ 2255. The court denied his § 2255 motion, and the Fourth Circuit denied him a
certificate of appealability. See United States v. Milton, 32 F. App’x 103, 103–04
(4th Cir. 2002) (per curiam). Subsequently, Mr. Milton filed several further
collateral attacks on his convictions and sentence, many of which were explicitly
brought under § 2255 and others that the courts in question construed as seeking
2
(...continued)
is not required in order to appeal a final order in a proceeding under 28 U.S.C.
§ 2241.” (citation omitted)).
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relief under that provision. However, Mr. Milton did not prevail on any of these
filings. See, e.g., United States v. Milton, 449 F. App’x 243, 2011 WL 4587571,
at *1 (4th Cir. 2011) (per curiam); United States v. Milton, 367 F. App’x 457,
2010 WL 675025, at *1 (4th Cir. 2010) (per curiam); United States v. Milton, 182
F. App’x 209, 210 (4th Cir. 2006) (per curiam); United States v. Milton, 141 F.
App’x 106, 107 (4th Cir. 2005) (per curiam).
Mr. Milton brought the instant challenge to his convictions and sentence in
the United States District Court for the District of Colorado under 28 U.S.C.
§ 2241. 3 Typically, challenges to the legality of one’s detention must be brought
under § 2255, but as Mr. Milton recognized, “§ 2255(e) includes a so-called
‘savings clause’ which sometimes allows a federal prisoner to resort to § 2241 to
challenge the legality of his detention.” Prost v. Anderson, 636 F.3d 578, 581
(10th Cir. 2011). To use the savings clause, Mr. Milton must show that “the
remedy [under § 2255] is inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). Before the district court, Mr. Milton argued
that § 2255 was inadequate or ineffective because the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) provisions limiting second or successive
3
At the time he filed his § 2241 petition, Mr. Milton was confined in
Colorado, and thus the United States District Court for the District of Colorado
was the proper court for his § 2241 challenge. See Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 . . . must be filed
in the district where the prisoner is confined.”).
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petitions are unconstitutional, and also because he has newly discovered evidence
of actual innocence.
The district court held that Mr. Milton failed to carry his burden of
demonstrating that § 2255 was inadequate or ineffective to test the legality of his
detention. Specifically, the district court held that the past denials of Mr.
Milton’s § 2255 motions and the Fourth Circuit’s failure to authorize the filing of
second or successive § 2255 motions did not make § 2255 inadequate or
ineffective. Mr. Milton filed a motion to reconsider, asserting that the district
court did not address the constitutional questions he raised in his § 2241
petition—questions that we allegedly left open in our Prost decision.
The district court denied this motion, stating, “[L]ike the § 2241 action in
Prost, nothing Mr. Milton presents satisfies [§ 2255(h)],” which provides the two
grounds for which a court of appeals may authorize the filing of a second or
successive § 2255 motion, and “[f]urthermore, nothing he asserts identifies what
provision of the Constitution is offended by the imposition of this subsection.”
R., Vol. I, at 51 (Order Den. Mot. for Recons., filed May 11, 2012).
This appeal followed.
II
A
“A federal prisoner may file a § 2241 petition to challenge the legality of
his conviction under the limited circumstances provided in the so-called ‘savings
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clause’ of § 2255.” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
One can only proceed under § 2241 by way of the savings clause if “the remedy
[provided] by [§ 2255] is inadequate or ineffective to test the legality of his
detention.” 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; see Prost, 636 F.3d at 584.
“Only in rare instances will § 2255 fail as an adequate or effective remedy
to challenge a conviction or the sentence imposed.” Sines v. Wilner, 609 F.3d
1070, 1073 (10th Cir. 2010). Notably, “[f]ailure to obtain relief under 2255 does
not establish that the remedy so provided is either inadequate or ineffective.”
Bradshaw, 86 F.3d at 166 (quoting Williams v. United States, 323 F.2d 672, 673
(10th Cir. 1963)) (internal quotation marks omitted); see Prost, 636 F.3d at 585.
As set forth in Prost, the relevant inquiry is typically “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.” 636 F.3d at 584.
As recognized by Mr. Milton, Prost established our general savings clause
test, but left open the question of “[w]hether the savings clause may be used . . .
to avoid serious constitutional questions arising from the application of
§ 2255(h),” and “the [related] questions [of] whether, when, and how the
application of § 2255(h)’s limits on second or successive motions might (ever)
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raise a serious constitutional question.” 636 F.3d at 594.
B
On appeal, Mr. Milton asserts that § 2255’s remedy is inadequate or
ineffective to test the legality of his detention and thus he should be permitted to
proceed under § 2241. As he did before the district court, Mr. Milton claims that
this is so because AEDPA’s provisions limiting second or successive petitions are
unconstitutional, and because he has newly discovered evidence of actual
innocence. By virtue of these arguments, Mr. Milton contends that he has raised
a serious constitutional question of the kind that we left open in Prost, and were
we to decide this constitutional question in his favor, he could proceed under
§ 2241.
The district court thoughtfully addressed Mr. Milton’s arguments. For
substantially the same reasons that the district court articulated, we summarily
conclude that Mr. Milton has not carried his burden of demonstrating that he
meets the savings clause. Consequently, Mr. Milton cannot proceed under
§ 2241. 4 That said, a few additional comments with respect to Mr. Milton’s
4
Mr. Milton also appeals from the district court’s denial of his motion
for a preliminary injunction to prevent his transfer to another prison facility until
we have decided his appeal. Because Mr. Milton requested the injunction to run
only until this appeal was decided, entry of this order and judgment renders his
request moot. Cf. WildEarth Guardians v. Public Serv. Co., 690 F.3d 1174, 1190
(10th Cir. 2012) (holding that a claim for injunctive relief is moot because the
relief requested had already occurred).
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purported constitutional argument are warranted.
Mr. Milton argues that the district court was incorrect in stating that he did
not identify what constitutional provisions were implicated by AEDPA’s
limitations on the filing of second or successive § 2255 motions. In this regard,
Mr. Milton says that he identified the provisions before the district court by citing
in his § 2241 motion to a document that he filed in a different case in the United
States District Court for the Western District of Virginia; he submitted this
document, along with other filings from his prior litigation, to the district court
with his § 2241 motion. Apparently, in Mr. Milton’s view, the constitutional
provisions of import here were adequately identified in the Western District of
Virginia filing and, by the sole act of citing to that document, he put the district
court here on notice of them—even though he never expressly identified them for
the court.
Mr. Milton’s position, however, is legally untenable. The district court was
not required to comb through Mr. Milton’s filings to find legal nuggets to support
his position. See, e.g., FDIC v. Schuchmann, 235 F.3d 1217, 1230 n.11 (10th Cir.
2000); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per
curiam) (“Judges are not like pigs, hunting for truffles buried in briefs.”). As we
have recognized in the appellate context, incorporation by reference is a sorry
briefing technique and it seldom (if ever) will be an adequate means to convey an
argument to a court. See In re Antrobus, 563 F.3d 1092, 1097 (10th Cir. 2009)
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(“[W]e have disapproved of parties adopting their previous filings in lieu of fully
setting forth their argument before this court.”); Concrete Works of Colo., Inc. v.
City & Cnty. of Denver, 321 F.3d 950, 979 n.14 (10th Cir. 2003) (“This court is
under no obligation to consider arguments not fully set forth in a party’s appellate
brief, including arguments incorporated by reference to prior pleadings or other
materials.”); see also 10th Cir. R. 28.4 (“Incorporating by reference portions of
lower court or agency briefs or pleadings is disapproved . . . .”). Even though the
court was obliged to construe Mr. Milton’s pro se filings liberally, he bore the
burden of making his constitutional argument, and the court would have strayed
into an impermissible zone if it had endeavored to make the argument for him.
See, e.g., Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir.
2012) (“[A]s we often reiterate, the generous construction that we afford pro se
pleadings has limits, and we must avoid becoming the plaintiff’s advocate.”);
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[B]ecause Pinson
appears pro se, we must construe his arguments liberally; this rule of liberal
construction stops, however, at the point at which we begin to serve as his
advocate.”).
Indeed, Mr. Milton does not even expressly inform us of the constitutional
provisions upon which he relies. Arguably, his constitutional argument is
therefore dead on arrival. Nevertheless, insofar as we can discern the contours of
Mr. Milton’s constitutional challenge—absent reference to specific constitutional
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provisions—we conclude that his challenge is wholly lacking in merit.
Specifically, Mr. Milton contends that the allegedly conflicting burdens of proof
in §§ 2255(h)(1) and 2244(b)(3)(C) render these provisions unconstitutional. As
relevant here, § 2255(h) provides that
[a] second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to
contain – (1) 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) (emphasis added). On the other hand, § 2244(b)(3)(C)
provides that a “court of appeals may authorize the filing of a second or
successive application only if it determines that the application makes a prima
facie showing that the application satisfies the requirements of this subsection.”
28 U.S.C. § 2244(b)(3)(C) (emphasis added).
Mr. Milton’s argument has no merit because the showings required by
§§ 2255(h)(1) and 2244(b)(3)(C) are not contradictory. Rather, they are distinct
showings. And each plays a unique role in the authorization process. Before
proceeding with a second or successive § 2255 motion, § 2255(h) requires
authorization from the court of appeals pursuant to § 2244. See 28 U.S.C.
§ 2255(h). Further, under § 2244(b)(3)(C), a court of appeals can only authorize
a second or successive motion if a prima facie showing is made that one of the
two circumstances set forth in § 2255(h) is met. See In re Shines, 696 F.3d 1330,
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1332 (10th Cir. 2012) (“In order to file a second or successive § 2255 motion in
the district court, [a movant] must first obtain our authorization. See 28 U.S.C.
§ 2255(h); id. § 2244(b)(3). This court may authorize a claim only if [a movant]
makes a prima facie showing that the claim relies on [one of the two types of
claims described in § 2255(h)].”); United States v. Harper, 545 F.3d 1230, 1232
(10th Cir. 2008) (“In order to file a second or . . . successive § 2255 motion, a
petitioner must first move the court of appeals for an order authorizing the district
court to hear the motion. 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3). In turn,
this court may grant permission to file a second or successive motion only if the
applicant meets [the] criteria [in § 2255(h)].”). Because Mr. Milton’s challenge
to AEDPA’s authorization scheme rests on a misapprehension of that
scheme—that is, that the scheme contains unconstitutionally contradictory
provisions—his argument is unavailing. Despite his attempt to do so, Mr. Milton
has failed to raise a “serious constitutional question” of the kind left open in
Prost.
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III
We AFFIRM the district court’s dismissal of Mr. Milton’s 28 U.S.C.
§ 2241 petition for lack of jurisdiction. 5
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
5
For the reasons above (see supra note 4), we deny Mr. Milton’s
request for a preliminary injunction to prevent his transfer to another prison
facility as moot. Mr. Milton also sought appointment of counsel to represent him
in this matter; in light of our disposition, we also deny that motion to appoint
counsel as moot.
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