FILED
United States Court of Appeals
Tenth Circuit
September 5, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GREGORY C. KAPORDELIS,
Petitioner - Appellant,
v. No. 17-6142
(D. C. No. 5:17-CV-00124-F)
JOHN B. FOX, (W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
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,
submitted without oral argument.
Gregory Kapordelis, a federal prisoner appearing pro se, appeals from the district
court’s order dismissing without prejudice his petition for writ of habeas corpus pursuant
*
This order and judgment is not binding precedent, except under the doctrines of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.
to 28 U.S.C. § 2241. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
In 2007, Kapordelis was convicted in the United States District Court for the
Northern District of Georgia of three counts of producing child pornography, two counts
of receiving child pornography, and one count of possessing child pornography. He was
sentenced to a term of imprisonment of 420 months and a $20,000 fine.
Kapordelis filed a direct appeal challenging his convictions and sentence. The
Eleventh Circuit Court of appeals affirmed Kapordelis’s convictions and sentence.
United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 2009). The Supreme Court denied
certiorari. Kapordelis v. United States, 559 U.S. 917 (2010).
In 2011, Kapordelis filed a motion to vacate, set aside or correct sentence pursuant
to 28 U.S.C. § 2255 in the United States District Court for the Northern District of
Georgia, asserting twenty-one grounds for relief. The magistrate judge assigned to the
case issued a report and recommendation recommending that the § 2255 motion be
denied. Kapordelis v. United States, No. 1:04-CR-249, 2011 WL 7460097 (N.D. Ga.
Dec. 12, 2011). The district court adopted the report and recommendation and denied
Kapordelis’s § 2255 motion. Kapordelis v. United States, No. 1:04-CR-249, 2012 WL
716022 (N.D. Ga. Mar. 6, 2012). Kapordelis sought but was denied a certificate of
appealability from the Eleventh Circuit Court of Appeals.
In 2014, Kapordelis, confined at the time at a federal prison in Marion, Illinois,
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States
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District Court for the Southern District of Illinois. Kapordelis argued that the United
States District Court for the Northern District of Georgia lost jurisdiction to entertain his
earlier § 2255 motion when the district judge presiding over that case failed to rule on a
motion to recuse. That oversight, Kapordelis argued, rendered the § 2255 proceeding
defective and the order denying his § 2255 motion void. He in turn argued that, under the
savings clause of 28 U.S.C. § 2255(e), the United States District Court for the Southern
District of Illinois was authorized to consider and resolve seven of the grounds for relief
that he originally identified in his § 2255 motion. The United States District Court for the
Southern District of Illinois, however, dismissed Kapordelis’s § 2241 habeas petition,
concluding that “[s]ection 2255(e) was not inadequate or ineffective to test the legality of
his conviction and sentence,” and that, in fact, the United States District Court for the
Northern District of Georgia denied his § 2255 motion on the merits. Kapordelis v.
Walton, No. 14-CV-1005-DRH, 2014 WL 5151030 at *4 (S.D. Ill. Oct. 14, 2014).
Kapordelis appealed the decision and the Seventh Circuit Court of Appeals
affirmed the district court’s decision. Kapordelis v. Walton, No. 15-3123 (7th Cir. Dec.
14, 2015). The Supreme Court subsequently denied Kapordelis’s petition for writ of
certiorari. Kapordelis v. Baird, 136 S. Ct. 2474 (2016).
On February 7, 2017, Kapordelis, while confined at the United States Bureau of
Prison’s Federal Transfer Center in Oklahoma City, Oklahoma, initiated these
proceedings by filing a pro se petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. As he did in the § 2241 habeas petition that he filed in the Southern District of
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Illinois, Kapordelis’s § 2241 petition alleged that his § 2255 proceeding in the Northern
District of Georgia was inadequate to test the legality of his sentence “because it was
officiated by a personally biased trial judge who expressly refused to litigate the question
of his own disqualification” after Kapordelis filed a motion seeking his recusal. ROA,
Vol. 1 at 6. Kapordelis in turn sought review of five issues that he previously raised in
his § 2255 motion.
On February 13, 2017, the magistrate judge assigned to the case issued a report
and recommendation recommending that Kapordelis’s § 2241 petition be dismissed with
prejudice. The magistrate judge recounted in detail Kapordelis’s post-conviction efforts
at challenging his convictions and sentence, and concluded that Kapordelis’s lack of
success did not render “the 28 U.S.C. § 2255 remedy . . . inadequate or ineffective to test
the legality of his detention under the Georgia federal convictions.” Id. at 7. Further, the
magistrate judge noted that Kapordelis had failed “to demonstrate that he . . . satisfied
either of the exceptions set forth in 28 U.S.C. § 2255(h)(1) or (2)” that would authorize
the filing of a second or successive § 2255 motion. Id. Lastly, the magistrate judge
concluded that Kapordelis’s “contention that the judges presiding over his § 2255 motion
were biased and should have recused themselves d[id] not establish that the § 2255
motion was inadequate or ineffective.” Id.
On April 18, 2017, the district court issued an order adopting the magistrate
judge’s report and recommendation “to the extent it recommend[ed] dismissal of [the]
petition . . . under . . . § 2241 for [Kapordelis] not demonstrating the 28 U.S.C. § 2255
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remedy is inadequate or ineffective to test the legality of his detention.” ROA, Vol. 1 at
171. The district court, however, disagreed with the magistrate judge that the petition
should be dismissed with prejudice, and, relying on our decision in Abernathy v. Wandes,
713 F.3d 538, 557 (10th Cir. 2013), instead dismissed the petition without prejudice,
concluding that it was “based upon a lack of statutory jurisdiction.” ROA, Vol. 1 at 171.
Final judgment was issued on April 18, 2017. Kapordelis has since filed a notice
of appeal.
II
Kapordelis challenges on appeal the district court’s dismissal of his § 2241 habeas
petition. We review the district court’s order de novo. Brace v. United States, 634 F.3d
1167, 1169 (10th Cir. 2011).
Kapordelis argues that “threshold jurisdiction should be granted under the savings
clause set forth at 28 U.S.C. § 2255(e), to review [his] original claims of constitutional
error under § 2241.” Aplt. Br. at 2. He argues that this is the proper result because his
“initial § 2255 proceedings” in the Northern District of Georgia “were structurally
inadequate or ineffective to test the legality of [his] conviction and sentence” because the
district judge who presided over his § 2255 proceedings was biased against him and
refused to rule on a recusal motion filed by Kapordelis. Id. Kapordelis in turn argues that
this resulted in a violation of 28 U.S.C. § 144 and “strip[ped] the 2255 judge of subject-
matter jurisdiction to ‘proceed further’ in the case, thus leaving him without authority to
dispose of the 2255 claims.” Id. Lastly, Kapordelis argues that “savings clause relief is
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also compelled by the Doctrine of Constitutional Avoidance, where applying 28 U.S.C.
§ 2255(e) to bar a § 2241 review under [his] circumstances would raise serious concerns
under the U.S. Constitution.” Id.
“[I]n 28 U.S.C. § 2255 Congress has chosen to afford every federal prisoner the
opportunity to launch at least one collateral attack to any aspect of his conviction or
sentence.” Prost v. Anderson, 636 F.3d 578, 583 (10th Cir. 2011). “If a prisoner’s initial
§ 2255 collateral attack fails, . . . Congress has indicated that it will sometimes allow a
prisoner to bring a second or successive attack.” Id. But “Congress has specified that
only certain claims it has deemed particularly important—those based on newly
discovered evidence suggestive of innocence, or on retroactively applicable constitutional
decisions—may be brought in a second or successive [§ 2255] motion.” Id. at 583-584.
“Yet, even here Congress has provided an out” under the so-called “savings
clause” set forth in § 2255(e). Id. at 584. “A prisoner who can’t satisfy § 2255(h)’s
conditions for a second or successive motion may obviate § 2255 altogether if he can
show that ‘the remedy by motion’ provided by § 2255 is itself ‘inadequate or ineffective
to test the legality of his detention.’” Id. (quoting 28 U.S.C. § 2255(e)). We have held
that the circumstances described in § 2255(e) are “extremely limited,” Caravalho v. Pugh,
177 F.3d 1177, 1178 (10th Cir. 1999), and it is “the prisoner’s burden to show that these
conditions . . . apply to his case.” Prost, 636 F.3d at 584.
In Prost, we held that “[t]he relevant metric or measure” in applying the savings
clause of § 2255(e) “is whether a petitioner’s argument challenging the legality of his
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detention could have been tested in an initial § 2255 motion.” 636 F.3d at 584. “If a
petitioner’s argument challenging the legality of his detention could’ve been tested in a
§ 2255 motion, the clause is satisfied.” Id. (emphasis in original). “In this way, the
clause is concerned with process—ensuring the petitioner an opportunity to bring his
argument—not with substance—guaranteeing nothing about what the opportunity
promised will ultimately yield in terms of relief.” Id. (emphasis in original). In other
words, “[t]he ultimate result may be right or wrong as a matter of substantive law, but the
savings clause is satisfied so long as the petitioner had an opportunity to bring and test his
claim.” Id. at 585.
We also emphasized in Prost that the savings clause “doesn’t guarantee multiple
opportunities to test a conviction or sentence.” Id. (emphasis in original). Indeed, we
noted, “the savings clause’s near neighbor, § 2255(h), . . . restricts second and successive
motions to those raising newly discovered evidence or new constitutional rulings.” Id. In
short, we held, “it is evident that a prisoner generally is entitled to only one adequate and
effective opportunity to test the legality of his detention, in his initial § 2255 motion.” Id.
at 586 (emphasis in original).
Kapordelis argues that he was deprived of that one adequate and effective
opportunity to test the legality of his detention because the district court judge who
presided over his § 2255 motion was biased against him and failed to rule on his motion
to recuse. In support, Kapordelis argues that this judge, who also oversaw his trial and
sentenced him for his convictions, was homophobic and
7
compared Kapordelis’s lawful, private, homosexual-sexual conduct in
Prague, Czech Republic, to an attempted rape of a toddler committed by a
previously sentenced defendant, and then substantially increased
Kapordelis’s prison term after concluding that the lawful gay sex was more
blameworthy, by comparison.
Aplt. Br. at 7.
We reject Kapordelis’s arguments for several reasons. To begin with, we note that
Kapordelis raised these same arguments in a prior § 2241 habeas petition that he filed in
the Southern District of Illinois. That court rejected Kapordelis’s petition and the Seventh
Circuit affirmed. Although “the usual principles of res judicata are inapplicable to
successive [§ 2241] habeas corpus proceedings,” Smith v. Yeager, 393 U.S. 122, 124
(1968), there is nothing in Kapordelis’s current § 2241 habeas petition that meaningfully
distinguishes it from the prior petition and that would justify a different outcome here.
Further, Kapordelis’s claims of bias on the part of the trial judge were, contrary to
his assertions, considered and rejected in his § 2255 proceeding. In Ground 18 of his
§ 2255 motion, Kapordelis challenged his convictions and sentence on the basis that the
district judge was overwhelmingly biased against him. The magistrate judge assigned to
the case concluded that Ground 18 was procedurally defaulted because Kapordelis could
have, but failed to, raise the issue on direct appeal. Kapordelis v. United States, No. 1:04-
CR-249, 2011 WL 7460097 at *9 (N.D. Ga. Dec. 12, 2011). Kapordelis also argued in
Ground 16 of his § 2255 motion that his direct appeal counsel was ineffective for failing
“to argue on appeal that the judges who handled his case were homophobic, bigoted, and
had an improper motivation to rule against Kapordelis.” Id. at *11. The magistrate judge
8
recommended rejecting this claim on the merits, concluding “it was clearly reasonable
for” Kapordelis’s appellate counsel “to choose not to argue [this] on appeal.” Id. The
district court in turn “adopt[ed] the report and recommendation as the opinion and order
of th[e] court” and denied Kapordelis’s § 2255 motion. Kapordelis v. United States,
1:04-CR-249, 2012 WL 716022 at *1 (N.D. Ga. Mar. 6, 2012).
Lastly, the Eleventh Circuit’s decision affirming Kapordelis’s convictions and
sentence on direct appeal dispels any notion that the trial judge, at the time of sentencing
Kapordelis, was biased against Kapordelis and punished him for his sexual orientation or
for engaging in consensual sexual conduct. The fact of the matter is that, as the Eleventh
Circuit recounted in substantial detail, Kapordelis engaged in “sexual exploits with
underage boys . . . across state lines and around the world” for a period of approximately
twenty years. 569 F.3d at 1298. These exploits included, among other things, drugging
and then photographing and/or molesting underage boys in the United States and foreign
countries, and “engag[ing] the services of young male prostitutes” in Prague, Czech
Republic, including at least one such prostitute who Kapordelis knew to be 14 years old.1
Id. at 1302. Kapordelis was also found to be in possession of thousands of images of
child pornography on his home computers, as well as homemade videos depicting himself
drugging and molesting victims. It was these facts, as well as Kapordelis’s lack of
remorse, that formed the basis for the district court’s sentencing decision. Id. at 1318.
1
Kapordelis also conceded in his direct appeal “that he engaged in sexual acts with
minors while he was in Prague.” 569 F.3d at 1313.
9
More specifically, as the Eleventh Circuit concluded in affirming Kapordelis’s sentence,
the district court selected the sentence based “on Kapordelis’s history of abuse, the
number of images that he possessed, and the need to protect society.” Id. at 1319.
In sum, we conclude that Kapordelis was not deprived of the adequate and
effective opportunity to test the legality of his detention in his initial § 2255 motion. We
in turn conclude that Kapordelis cannot rely on the savings clause of § 2255(e) as a
gateway to seek federal habeas relief under § 2241. We therefore agree with the district
court that it lacked statutory jurisdiction to entertain his § 2241 habeas petition.
Abernathy, 713 F.3d at 557 (“when a federal petitioner fails to establish that he has
satisfied § 2255(e)’s savings clause test—thus, precluding him from proceeding under
§ 2241—the court lacks statutory jurisdiction to hear his habeas claims.”).
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
10