Prost v. Anderson

• Decision Date: 22 February 2011
• Docket Number: No. 08–1455.,08–1455.
• Citation: 636 F.3d 578
• Parties: Keith PROST, Petitioner–Appellant,v.Carl ANDERSON, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

636 F.3d 578

Keith PROST, Petitioner–Appellant,
v.
Carl ANDERSON, Respondent–Appellee.

No. 08–1455.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 2011.

[636 F.3d 579]

Shannon Wells Stevenson, Davis Graham & Stubbs LLP, Denver, CO, for Petitioner–Appellant.Paul Farley, Assistant United States Attorney (David M. Gauoette, United States Attorney, with him on the brief), Denver, CO, for Respondent–Appellee.Before O'BRIEN, SEYMOUR, and GORSUCH, Circuit Judges.GORSUCH, Circuit Judge.

Nearly a decade after Keith Prost pleaded guilty to engaging in a money laundering conspiracy, the Supreme Court issued United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), interpreting the statute under which Mr. Prost stood convicted. In light of that new interpretation, Mr. Prost says his guilty plea should be revisited and his conviction undone. The problem is that Mr. Prost never pursued a statutory interpretation argument in his own trial court proceedings, on appeal, or in his initial collateral challenge to his conviction. And he concedes that 28 U.S.C. § 2255(h) doesn't permit him a second collateral challenge to raise such an argument now. So, it would seem, Mr.

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Prost's long-final criminal conviction must remain just that: final.

Not so, says Mr. Prost. Even now, Mr. Prost insists, he should be allowed to proceed with his statutory interpretation argument under 28 U.S.C. § 2241, if not § 2255. The district court rejected this argument and so must we. Congress has told us that federal prisoners challenging the validity of their convictions or sentences may seek and win relief only under the pathways prescribed by § 2255. To this rule, Congress has provided only one exception: 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.” 28 U.S.C. § 2255(e). And that exception doesn't apply here. Mr. Prost was free to bring a Santos-type statutory interpretation argument in his initial § 2255 motion, and an initial § 2255 motion offered him an adequate and effective means for testing such an argument. The fact that § 2255 bars Mr. Prost from bringing his statutory interpretation argument now, in a second § 2255 motion almost a decade after his conviction, doesn't mean the § 2255 remedial process was ineffective or inadequate to test his argument. It just means he waited too long to raise it.

I

In 1998, Mr. Prost found himself, along with a dozen colleagues, indicted in the Eastern District of Missouri for participating in a drug trafficking operation. Eventually, Mr. Prost pleaded guilty to one count of conspiring to possess and distribute methamphetamine, in violation of 21 U.S.C. § 846, and two counts of conspiring to launder proceeds derived from a drug dealing operation, in violation of 18 U.S.C. § 1956. See United States v. Prost, No. 98–CR–264–ERW (E.D.Mo. Jan. 22, 1999) (unpublished). After being convicted and sentenced in 1999, Mr. Prost filed a collateral challenge pursuant to 28 U.S.C. § 2255 in the Eastern District of Missouri seeking to vacate his sentence, though not his conviction. The district court rejected that effort in 2004, Prost v. United States, No. 00–CV–98–ERW (E.D.Mo. Jan. 12, 2004) (unpublished), and the Eighth Circuit agreed with the district court's disposition, Prost v. United States, No. 04–1394 (8th Cir. July 6, 2004) (unpublished).

That seemed to mark the end of the legal road for Mr. Prost. But then, nearly a decade after his conviction became final, the Supreme Court handed down Santos. There, at least in the context of an illegal lottery operation, the Court held that the term “proceeds” in the federal money laundering statute, 18 U.S.C. § 1956, means “profits,” and not just “gross receipts.” 553 U.S. at 514, 128 S.Ct. 2020. So, to establish a violation of § 1956, the Supreme Court instructed, the government had to show that the defendant in Santos laundered the lottery's profits, not merely its gross receipts. ¹

Appreciating Santos's potential significance for his case, Mr. Prost filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, asking to have his money

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laundering conspiracy convictions reopened and overturned. He claimed that the funds he laundered were only the gross receipts, not the profits, of the drug dealing operation, and so he was innocent of any money laundering crime. Because § 2241 petitions must be brought in the district of incarceration, Mr. Prost filed his petition in federal district court in Colorado as, by this time, he was serving his sentence at the federal prison camp in Florence, Colorado.

The district court immediately identified one problem with Mr. Prost's § 2241 petition. Congress long ago decided that a federal prisoner's attempt to attack the legality of his conviction or sentence generally must be brought under § 2255, and in the district court that convicted and sentenced him—here, the Eastern District of Missouri. Meanwhile, § 2241 petitions, brought in the district where the prisoner is confined, are generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement. Before the Colorado district court, Mr. Prost acknowledged all this, and conceded that his petition does not challenge the condition of his confinement but rather attempts a frontal assault on his conviction.

Under these circumstances, a district court would normally dismiss Mr. Prost's § 2241 petition without prejudice so that he might refile it as a § 2255 motion in the appropriate sentencing court. See Bradshaw v. Story, 86 F.3d 164, 167 (10th Cir.1996). Alternatively, a district court might construe Mr. Prost's petition as a § 2255 motion and transfer it to the sentencing court for review. But Mr. Prost sought to avoid both these outcomes. Before the Colorado district court, he admitted that years earlier he had filed (and lost) one motion under § 2255—a motion in which he attacked only his sentence. Mr. Prost also admitted that Congress, in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), has restricted the availability of second or successive § 2255 motions to claims involving either newly discovered evidence strongly suggestive of innocence or new rules of constitutional law made retroactive by the Supreme Court. See 28 U.S.C. § 2255(h).² And, Mr. Prost admitted, a new statutory interpretation, such as the one announced in Santos, is neither of those things. Mr. Prost thus acknowledged that he is prohibited by § 2255(h) from bringing a Santos-based challenge to his money laundering convictions in a second motion.

But, Mr. Prost noted, § 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, not just the conditions of his confinement. To fall within the ambit of savings clause and so proceed to § 2241, a prisoner must show that “the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). Section 2255 is both of these things in his case, Mr. Prost submitted, because § 2255(h) bars him from pursuing an argument that, in light of the Supreme Court's statutory interpretation in Santos, he should've been

[636 F.3d 582]

found not guilty of the money laundering charges against him.

The district court rejected this contention, holding that “[t]he fact that Mr. Prost may be barred [by § 2255(h) ] from raising his claims in a second or successive motion ..., by itself, does not demonstrate that the remedy provided in § 2255 is inadequate or ineffective.” See Prost v. Wiley, 08–CV–2246–BNB, 2008 WL 4925667, at *2 (D.Colo. Nov. 13, 2008) (unpublished). It is from this ruling that Mr. Prost now appeals. ³

II

A criminal conviction is “a decisive and portentous event.” Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Before any conviction, the accused enjoys a presumption of innocence, a right to trial by jury, and a range of evidentiary and procedural guarantees secured by the Constitution and multifold statutes. All of this stems from our society's aspiration to protect the innocent against the possibility of a wrongful conviction, an aspiration long given voice in the common law by Blackstone's maxim that it is a better thing for ten guilty persons to escape punishment than for one innocent to suffer wrongly. See 4 William Blackstone, Commentaries *358; see also Alexander Volokh, “ n Guilty Men,” 146 U. Penn. L.Rev. 173 (1997). While perhaps no criminal justice system in history can convincingly claim to have succeeded entirely in preventing the conviction of the innocent, ours concentrates its considerable resources “at [the] time and place [of trial or plea in an effort] to decide, within the limits of human fallibility, the question of guilt or innocence of one of [our fellow] citizens.” Wainwright, 433 U.S. at 90, 97 S.Ct. 2497. We then double- and sometimes triple-check the result through our layered appellate system. Only after that appellate process is exhausted does the criminal proceeding yield what our legal system recognizes as a “final judgment.”

The principle of finality, the idea that at some point a criminal conviction reaches an end, a conclusion, a termination, “is essential to the operation of our criminal justice system.”

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Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); see also McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In every case there comes a time for the litigation to stop, for a line to be drawn, and the parties encouraged to move forward rather than look back. “A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude,” the Supreme Court has explained, “implies a lack of...