773 F.3d 230
10th Cir.2014Background
- James Cleaver, pro se, convicted in D. Colo. (2003) of arson of government property, interfering with IRS employees, suborning perjury, and witness tampering; sentenced to 400 months; convictions affirmed on direct appeal.
- Cleaver filed a § 2255 motion in Colorado alleging ineffective assistance of appellate counsel; district court denied relief and this Court denied a certificate of appealability (COA).
- Cleaver moved under Fed. R. Civ. P. 60(b)(6) in Colorado, claiming the § 2255 ruling was entered before he received the Government’s response; the district court denied that Rule 60(b) motion and this Court rejected a COA.
- Cleaver twice filed § 2241 habeas petitions in D. Kan. raising the same timing/procedural inadequacy claim; both were dismissed for lack of jurisdiction.
- He filed a third § 2241 petition in D. Kan. on the same ground and that petition was dismissed; he appealed the dismissal to this Court.
- The issue presented: whether Cleaver may invoke the § 2255 “savings clause” (28 U.S.C. § 2255(e)) to bring a § 2241 petition because § 2255 was allegedly inadequate or ineffective due to procedural timing that prevented a reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2255 was inadequate or ineffective so Cleaver could proceed under § 2241 (savings clause) | Cleaver: Colorado court ruled on his § 2255 before Government’s response arrived, denying his opportunity to reply and rendering § 2255 inadequate | Government: Cleaver had opportunity to raise the procedural objection in the § 2255 proceedings, Rule 60(b) motion, or on appeal; inadequacy not established by mere unfavorable result | Court: § 2255 was not inadequate; dismissal for lack of jurisdiction affirmed |
Key Cases Cited
- Brace v. United States, 634 F.3d 1167 (10th Cir. 2011) (§ 2241 generally challenges sentence execution; § 2255 is usual vehicle to challenge conviction)
- Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (defines when § 2255 savings clause applies; remedy must be genuinely absent)
- Caravalho v. Pugh, 177 F.3d 1177 (10th Cir. 1999) (mere preclusion from filing second § 2255 does not make § 2255 inadequate)
- McIntosh v. U.S. Parole Comm., 115 F.3d 809 (10th Cir. 1997) (no COA required for § 2241 appeals)
- United States v. Cleaver, [citation="163 F. App'x 622"] (10th Cir. 2005) (unpublished) (affirming Cleaver’s convictions)
- United States v. Cleaver, [citation="319 F. App'x 728"] (10th Cir. 2009) (unpublished) (rejecting Cleaver’s Rule 60(b) arguments and COA request)