Abernathy v. Wandes

• Citation: 713 F.3d 538
• Decision Date: 08 April 2013
• Docket Number: No. 10–1252.,10–1252.
• Parties: Gary ABERNATHY, Petitioner–Appellant, v. Warden Julie WANDES, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

713 F.3d 538

Gary ABERNATHY, Petitioner–Appellant,

v.Warden Julie WANDES, Respondent–Appellee.

No. 10–1252.

United States Court of Appeals,

Tenth Circuit.

April 8, 2013.

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, CO, for Petitioner–Appellant.

Michael A. Rotker, Attorney, Appellate Section, United States Department of Justice, Criminal Division (Lanny A. Breuer, Assistant Attorney General; Greg D. Andres, Acting Deputy Assistant Attorney General; John F. Walsh, United States Attorney; and Paul Farley, Assistant United States Attorney, with him on the briefs), Washington D.C. and Denver, CO, for Respondent–Appellee.

Before HARTZ, EBEL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Petitioner Gary Abernathy, a federal prisoner, appeals from the judgment of the United States District Court for the District of Colorado, which dismissed his 28 U.S.C. § 2241 petition for a writ of habeas corpus. By way of § 2241, Mr. Abernathy seeks to have an alleged error of law in the calculation of his sentence corrected based upon a subsequently issued Supreme Court decision interpreting the Armed Career Criminal Act (“ACCA”), see Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), despite the fact that his conviction became final many years ago.

In 2001, Mr. Abernathy was convicted in the United States District Court for the Western District of Missouri of being a felon in possession of a firearm and was sentenced as an armed career criminal under the ACCA because he had three qualifying ACCA convictions. Consistent with Eighth Circuit precedent at that time, the district court determined that Mr. Abernathy's 1979 conviction for a “walkaway” escape was a qualifying conviction under the ACCA. Mr. Abernathy unsuccessfully challenged this determination on direct appeal. Subsequently, he filed a motion under 28 U.S.C. § 2255 in the sentencing court seeking to raise on collateral review several seemingly unrelated challenges. The district court denied relief and the Eighth Circuit declined to grant a Certificate of Appealability (“COA”) under 28 U.S.C. § 2253(c)(1).

Several years after Mr. Abernathy's 2001 conviction appeared to be final, the Supreme Court decided Chambers, which held that an escape conviction based on a failure to report (or to return) to a penal facility falls outside the scope of the ACCA's definition of a violent felony and therefore cannot serve as a qualifying ACCA conviction. See555 U.S. at 127, 130, 129 S.Ct. 687. Believing his 1979 walkaway escape to be the type of conviction that is not a qualifying ACCA conviction under Chambers, Mr. Abernathy filed a motion with the Eighth Circuit seeking the requisite authorization to file a second motion with the sentencing court under 28 U.S.C. § 2255. See generally In re Cline, 531 F.3d 1249, 1251 (10th Cir.2008) (“A district court does not have jurisdiction to address the merits of a second or successive § 2255 or 28 U.S.C. § 2254 claim until [the applicable circuit] court has granted the required authorization.”). The Eighth Circuit denied relief.

Subsequently, Mr. Abernathy filed a § 2241 petition in the federal judicial district of his incarceration—the United States District Court for the District of Colorado—to challenge his sentence. Mr. Abernathy sought to use the so-called “savings clause” contained in § 2255(e), which permits a federal prisoner to proceed under § 2241 when the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention.” Without reaching the merits of Mr. Abernathy's Chambers claim, the district court—applying the Fifth Circuit's savings clause test ( see Reyes–Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001))—dismissed his § 2241 petition, reasoning that Mr. Abernathy failed to meet the “actual innocence” prong of that test because one cannot be “actually innocent” of a sentencing enhancement.

After the district court's decision, however, we decided Prost v. Anderson, 636 F.3d 578 (10th Cir.2011), which set forth a different savings clause test than the one that the district court applied. Mr. Abernathy contends that he satisfies Prost 's savings clause test because the law-of-the-case doctrine precluded him, in his initial § 2255 petition, from challenging whether his escape conviction was a predicate crime under the ACCA. And, even if we were to conclude otherwise, he argues, denying him the opportunity to proceed under § 2241 would have the effect of violating the Constitution's Suspension Clause—a result that we must avoid.

We disagree with Mr. Abernathy on both scores. First, we conclude that, even assuming arguendo that the law-of-the-case doctrine would have had the effect of foreclosing Mr. Abernathy's Chambers argument in his initial § 2255 proceeding, it would not follow that § 2255 was an inadequate or ineffective procedural vehicle for testing the validity of his confinement. Second, reviewing for plain error, we determine that it is not clear or obvious under well-settled law that barring Mr. Abernathy from proceeding under § 2241 raises concerns under the Suspension Clause.

Accordingly, we affirm the district court's dismissal of Mr. Abernathy's § 2241 habeas petition for lack of statutory jurisdiction.

I

In 2001, Mr. Abernathy was convicted of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The 2001 Presentence Report (“PSR”) recommended that Mr. Abernathy be sentenced as an armed career criminal under the ACCA because his criminal history included three prior “violent felony” convictions: (1) a 1973 federal assault conviction;(2) the 1979 federal escape conviction; and (3) a 1990 Kansas state court conviction for aggravated robbery.¹ Over Mr. Abernathy's objection that his 1979 escape conviction did not qualify under the ACCA, the district court sentenced him to 293 months' imprisonment as an armed career criminal.

On direct appeal to the Eighth Circuit, Mr. Abernathy again argued that his 1979 escape conviction was not a qualifying conviction under the ACCA. The Eighth Circuit affirmed the district court, holding that the fact that Mr. Abernathy “merely walked away from his place of incarceration” did not take his conviction outside § 924(e)'s definition of a violent felony. United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002). Mr. Abernathy filed a petition for certiorari to the United States Supreme Court, but it was denied.

In 2002, Mr. Abernathy filed a pro se § 2255 petition to vacate his sentence in the Western District of Missouri, asserting several claims that were seemingly unrelated to his challenge to the ACCA predicate-offense status of his 1979 escape conviction. The district court denied the motion. Subsequently, the Eighth Circuit denied Mr. Abernathy a COA and dismissed the matter.

In 2008, the Supreme Court held that a prior conviction does not constitute a “violent felony” under the ACCA unless it involves “purposeful, violent, and aggressive conduct.” Begay v. United States, 553 U.S. 137, 144–45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (citation omitted) (internal quotation marks omitted). Following Begay, in Chambers, the Supreme Court held that a conviction for failure to report to a penal institution (for weekend confinement) is not a “violent felony” under the ACCA. See Chambers, 555 U.S. at 128, 129 S.Ct. 687 (noting that the offense of failure to report “does not involve conduct that presents a serious potential risk of physical injury to another” (quoting Begay, 553 U.S. at 141–42, 128 S.Ct. 1581) (internal quotation marks omitted)).

In response to Chambers, and after the denial of various habeas petitions he filed in the Eighth Circuit, Mr. Abernathy filed a pro se application for a writ of habeas corpus pursuant to § 2241 in the United States District Court for the District of Colorado, the district where he was incarcerated.² In his application, Mr. Abernathy argued that he should be permitted to proceed with his § 2241 petition because § 2255 is “inadequate and ineffective to test the legality of [his] conviction” given that:

(1) at the time of the conviction, settled law of the circuit or the Supreme Court established the legality of the conviction; (2) subsequent [to his] direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which [he] was convicted is deemed not to be criminal; and (3) [he] cannot satisfy the gatekeeping provisions of § 2255 because the new rule [i.e., Chambers ] is not one of constitutional law.³R. at 10–11 (Appl. for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed Mar. 5, 2010).

Mr. Abernathy asserted that Chambers was retroactive to cases on collateral review because it announced a substantive rule regarding the ACCA's meaning, and that after Chambers, he was “actually innocent” of his armed-career-criminal status because his 1979 escape conviction was no longer a qualifying ACCA conviction. Thus, according to Mr. Abernathy, he did not have three prior violent felony convictions within the meaning of the ACCA.

The magistrate judge ordered Mr. Abernathy to show cause as to why his § 2241 petition should not be denied, stating that “[t]he exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255,” id. at 30 (Order to Show Cause, filed Apr. 6, 2010) (quoting Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965) (per curiam)) (internal quotation marks omitted), and Mr. Abernathy had not demonstrated that “the remedy available to him pursuant to § 2255 [was] inadequate or ineffective,” id.

Mr. Abernathy filed six separate responses to the magistrate judge's order to show cause. Mr. Abernathy has explained that, in these six responses, he argued to the district court that “through no fault of his own, he had...