Ranes v. Warden

• Decision Date: 04 December 2015
• Docket Number: Civil Action No. 15-cv-02406-GPG
• Parties: THOMAS P. RANES, Applicant, v. WARDEN, F.C.I. ENGLEWOOD, Respondent.
• Court: U.S. District Court — District of Colorado

THOMAS P. RANES, Applicant, v. WARDEN, F.C.I. ENGLEWOOD, Respondent.

Civil Action No. 15-cv-02406-GPG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

December 4, 2015

ORDER OF DISMISSAL

Applicant, Thomas P. Ranes, is in the custody of the Federal Bureau of Prisons, currently incarcerated at the Federal Correctional Institution in Englewood, Colorado. On October 29, 2015, Applicant filed, through counsel, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and a supporting Brief (ECF No. 2) that challenges the constitutionality of 28 U.S.C. § 2255(e) and also the validity of his conviction and sentence in case 3:06-cr-00041-RRB-1 in the United States District Court for the District of Alaska. Applicant has paid the filing fee.

Pursuant to D.C.COLO.LCivR. 8.1(b)(4), this Court reviews "the pleadings of a prisoner (whether represented by counsel or not) to determine whether the pleadings should be dismissed summarily if the prisoner is . . . asserting claims pertinent to his or her conviction or sentence . . . ." For the reasons discussed below, the § 2241 application will be dismissed.

I. Background

On December 15, 2006, Applicant was charged in a Second Superseding Indictment with:

Count 1 - Conspiracy to Import 1,000 Kilograms or More of Marijuana, and MDMA or "ecstasy," in violation of 21 U.S.C. §§ 952 and 960(a), (b)(1);

Count 2 - Conspiracy to Distribute and Possess with Intent to Distribute, 1,000 Kilograms or More of Marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A);

Counts 3-136 - Money Laundering, Attempted Money Laundering, Aiding and Abetting Money Laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), (a)(1)(B)(ii) and 2;

Counts 137-140 - Money Laundering, in violation of 18 U.S.C. §§ 1956(a)(2)(B)(i) and 2;

Count 141 - Criminal Forfeiture (Drug Offenses), pursuant to 21 U.S.C. §§ 853(a)(1), (a)(2);

Count 142 - Criminal Forfeiture (Money Laundering), pursuant to 18 U.S.C. § 982(a)(1) and Rule 32.2(a), Federal Rules of Criminal Procedure.

United States v. Ranes, No. 3:06-cr-00041 (D. Alaska), ECF No. 284.

Ultimately, Applicant pled guilty to Counts 1 (marijuana importation conspiracy), 119 (money laundering), and 137 (international money laundering). (Id., ECF No. 719 and 721). A few months later, Applicant moved to withdraw his guilty plea (Id. at ECF No. 754), but the District Court denied the motion (Id. at ECF No. 817). On June 5, 2008, Judge Ralph R. Beistline of the United States District Court for the District of Alaska sentenced Applicant to 360 months imprisonment and 5 years of supervised release. (Id. at ECF No. 849).

Applicant filed a timely notice of appeal with the Ninth Circuit asserting two claims: (1) the district court erred in denying his motion to withdraw his guilty plea; and (2) ineffective assistance of counsel. The Ninth Circuit rejected both claims on August 31, 2009. United States v. Ranes, 344 Fed. App'x. 364(9^th Cir. 2009). Further, on November 9, 2009, the Ninth Circuit denied Applicant's Petition for a Panel Rehearing and Petition for Rehearing en banc. United States v. Ranes, No. 3:06-cr-00041 (D. Alaska), ECF No. 1032.

On February 15, 2011, Applicant filed pro se a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 in the District Court for the District of Alaska. Id., ECF No. 1043. He raised one issue in his § 2255 motion: his guilty plea was unknowing and unintelligent due to ineffective assistance of counsel. He was subsequently appointed counsel, who filed an amended § 2255 motion asserting the same one claim but attaching a sworn affidavit from Mr. Ranes. Id., ECF No. 1066. On January 19, 2012, the district court denied Applicant's § 2255 motion. Id., ECF No. 1083. Applicant's habeas counsel filed a timely notice of appeal. Id., ECF No. 1083. However, neither the district court nor the court of appeals granted a certificate of appealability. Id., ECF Nos. 1095 and 1109.

The instant action was commenced on October 29, 2015, and Applicant asserts three claims in support of his § 2241 application: (1) the "savings clause" of 28 U.S.C. § 2255(e) is unconstitutionally vague; (2) alternatively, § 2255 is "inadequate or ineffective" when a federal prisoner is denied § 2255 relief as a result of ineffective assistance of habeas counsel; and (3) Ranes' substantive claim for relief -- § 2255 counsel provided ineffective assistance resulting in the denial of Ranes' § 2255 motion wherein Ranes claimed that his guilty plea was not knowingly and intelligently entered into. (ECF No. 1).

II. Analysis

A. Constitutionality of Section 2255(e)

Applicant argues that the savings clause of 28 U.S.C. § 2255(e) is unconstitutionally vague. A federal prisoner may challenge the legality of his underlying conviction by filing a habeas petition under 28 U.S.C. § 2255. Brace v. United States, 634 F.3d 1167, 119 (10th Cir. 2011). A § 2255 motion must be filed with the sentencing court. See 28 U.S.C. § 2255(a). Applicant was sentenced in the District of Alaska and he has pursued a § 2255 motion there, but it was denied. Prisoners are usually given only one chance to have a § 2255 petition considered on the merits. See 28 U.S.C. § 2244; Prost v. Anderson, 636 F.3d 578, 586 (10th Cir.2011). One of the main purposes in enacting the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), was to ensure a greater degree of finality for convictions.

However, section 2255(e) provides an additional opportunity for federal prisoners to challenge a conviction in certain limited circumstances. Section 2255(e) is the so-called "savings clause" of § 2255, which allows a federal prisoner to file a § 2241 application to challenge the legality of his conviction if the remedy by § 2255 motion is "inadequate or ineffective" to test the legality of an applicant's detention. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (citing 28 U.S.C. § 2255(e); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)). Section 2241 applications must be made in the district where the applicant is confined. See Bradshaw v. Story, 86 F.3d 164, 166 (10^th Cir. 1996).

In this case, Applicant is challenging the legality of his conviction by pursuing a § 2241 application in this court because although he was convicted in the District ofAlaska, he is currently incarcerated in Colorado. See Atkins v. Garcia, 816 F. Supp.2d 1108, 1110 (D. Colo. 2011). The only way to proceed with a § 2241 application to challenge a conviction is through the § 2255(e) savings clause.

The narrow reading of the savings clause is well established in the Tenth Circuit. See Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011). Rarely is a remedy inadequate or ineffective to challenge a conviction in a § 2255 motion. Brace, at 1169 (citing Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010) (erroneous decision on a § 2255 does not necessarily render the § 2255 remedy inadequate or ineffective)); see also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (The remedy available pursuant to § 2255 is inadequate or ineffective only in "extremely limited circumstances.") .

In Prost, the Court stated the question is "whether a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion." 636 F.3d at 584. Section 2255 is not considered inadequate or ineffective merely because the result of a § 2255 petition is unsuccessful. Prost, 636 F.3d at 584-85. "[T]he mere fact [the movant] is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate." Caravalho, 177 F.3d at 1179. Instead, the opportunity to seek a § 2255 remedy must be deemed "genuinely absent" before a petitioner may properly file a § 2241 petition. Prost, 636 F.3d at 588. For example, the savings clause may be met when the original sentencing court has been abolished or dissolved and the petitioner has nowhere to file a § 2255 petition. See Prost, 636 F.3d at 588; see also Caravalho, 177 F.3d at 1178 (listing cases).

While the Tenth Circuit has specifically stated that "a showing of actual innocence is irrelevant," it has raised and left open the question that there might be a case where an applicant should be allowed to "proceed to § 2241 when the application of § 2255(h)'s bar against a second or successive motion for collateral review would seriously threaten to render the § 2255 remedial process unconstitutional." Prost, 636 F.3d at 593 (citing Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997) (savings clause may be triggered where "the failure to allow for collateral review would raise serious constitutional questions"); In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997)("Were no other avenue of judicial review available for a party who claims that s/he is factually or legally innocent as a result of a previously unavailable statutory interpretation, we would be faced with a thorny constitutional issue.")). Further, the Tenth Circuit has recognized that "a fundamental miscarriage of justice" exception allows courts to grant federal habeas relief in spite of procedural bars—such as the bar on second and successive § 2255 motions—where a constitutional violation "has probably resulted in the conviction of one who is actually innocent." Lee v. Oliver, No. 14-1287, 574 Fed. Appx. 846, 846-48 (10^th Cir. Sept. 3, 2014) (citations omitted); Brown v. Berkebile, 572 Fed. Appx. 605, 608-09 (10^th Cir. 2014); Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) ("[H]abeas courts [have discretion] to see that federal constitutional errors do not result in the incarceration of innocent persons.")). However, when assessing the fundamental miscarriage of justice exception, the Tenth Circuit has held that the prisoner must show, under Prost's savings clause test, that the actual innocence...