Applicant - Appellant, VS
DAVID BERKEBILE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of Colorado The Honorable Lewis T. Babcock, Senior Judge
Civil Action No. 14-cv-01233-LTB
APPELLEE'S ANSWER BRIEF
JOHN F. WALSH
United States Attorney
MICHAEL C. JOHNSON
Assistant United States Attorney
1225 17th Street, Suite 700
Denver, Colorado 80202
Telephone: (303) 454-0134 Attorneys for Appellee
November 5, 2014
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES..... STATEMENT OF RELATED CASES
STATEMENT OF JURISDICTION ....
STATEMENT OF TI-IE ISSUES .....
STATEMENT OF CASE AND FACTS .
A. Mr. Hale's previous S 2255 motion..........
B. Mr. Hale's present habeas application under 2241..
SUMMARY OF THE ARGUMENT....
ARGUMENT .
The District Court Correctly Dismissed Mr. Hale's First
Claim for Lack of Statutory Jurisdiction. .
A. Issue Raised and Ruled Upon
B. Standard of review
C. Discussion.
1. Hale could have raised his "actual innocence" claim in his initial 2255
2.Mr. Hale's actual innocence claim is irrelevant. ...
3. This Court's holdings in Prost and Abernathy are applicable here. .....
4. The exclusive remedy provision of S 2255(e) does not violate either the Fifth Amendment or the Eighth Amendment..
The district court did not require Mr. Hale to present "new" evidence of his innocence.
McQuiggin does not provide a "gateway" to Mr. Hale's "actual innocence" argument.
The District Court Correctly Dismissed Mr. Hale's Seventh Claim for Lack of Statutory Jurisdiction.
A. Issue Raised and Ruled Upon Below.... .... .....
B. Standard of Review.........
C. Discussion
CONCLUSION .....
STATEMENT REGARDING ORAL ARGUMENT..
CERTIFICATE OF DIGITAL SUBMISSION...
CERTIFICATE OF SERVICE.....
TABLE OF AUTHORITIES
FEDERAL CASES
Abernathy v. Wandes, 713 F.3d 538 (10th Cir. 2013) ..
. 8, 10, 11, 12, 16
Adams v. United States, 372 F.3d 132 (2d Cir. 2004).....
.13
Alexander v. Keane,
991 F. supp. 329 (S.D.N.Y. 1998).......
.12, 13
al-Marri v. Davis,
714 F.3d 1183 (10th Cir.2013)
. 6, 18
Bailey v. United States, 516 U.S. 137 (1995).......
.. 21
Bradshaw v. Story,
86 F.3d 164 (10th Cir. 1996).........
Caravalho v. Pugh,
177 F.3d 1177 (10th Cir.1999)
.. 8, 20, 22
Crane v. Kentucky, 476 U.S. 683 (1986) .... ...
Hale v. United States,
2010 WL 2921634 (N.D. Ill. July 22, 2010) (unpublished) ....
Hale v. United States,
2011 WL 5104630 (N.D. 111. Oct. 27, 2011) (unpublished) .... ....
Hale v. United States, 710 F.3d 711 (7th Cir.), cert. denied, 134 S. Ct. 333 (2013) .
House v. Bell,
547 U.S. 518 (2006) ...
In re Dorsainvil,
1 19 F,3d 245 (3d Cir.
Jameson v. Samuels,
555 F. App'x 743 (10th Cir. Jan. 28, 2014) (unpublished).....
Jiminian v. Nash,
245 F.3d 144 (2d Cir.
Johnson v. Taylor,
347 F.2d 365 (10th Cir. 1965).....
Mathews v. Eldridge,
424 U.S. 319 (1976) .....
McQuiggin v. Perkins,
133 S. Ct. 1924 (2013)
Prost v. Anderson,
636 F.3d 578 (10th Cir. 2011)......
Schlup v. Delo,
513 U.S. 298 (1995) ... ..
Strickland v. English,
No. 5:13-cv-248-RSEMT, 2013 WL 4502302
Triestman v. United States, 124 F.3d 361 (2d Cir. 1997).....
United States v. Hale,
448 F.3d 971 (7th Cir. 2006), cert. denied, 549 U.S. 1158 (2007)......
U.S. v. Hernandez-Garduno,
460 F.3d 1287 (10th Cir.
Whitehorse v. United States,
No. 13-CV-2922 (PJS/JJK), 2014 WL 668176 (D. Minn. Feb. 20,
2014).....
Williams v. United States,
323 F.2d 672 (10th Cir. 1963).......
FEDERAL STATUTES
28 U.S.C. 1291 .
28 U.S.C. s 2241
28 U.S.C. ......
28 U.S.C. s 2254 .
28 U.S.C. 2255 ................
STATEMENT OF RELATED CASES
Mr. Hale was convicted in the United States District Court for the Northern District of Illinois of obstructing justice and soliciting a crime of violence. The judgment of conviction was affirmed on direct appeal. See United States v. Hale, 448 F.3d 971 (7th Cir. 2006) (per curiam), cert. denied, 549 U.s. 1158 (2007).
Mr. Hale challenged his convictions in a motion pursuant to 28 U.S.C.
2255. The sentencing court denied the 2255 motion. See Hale v. United states, 2010 WL 2921634 (N.D. Ill. July 22, 2010) (unpublished).
Mr. Hale appealed and the order denying the 2255 motion was affirmed. See Hale v.
United States, 710 F.3d 711 (7th Cir.), cert. denied, 134 S. ct. 333 (2013).
STATEMENT OF JURISDICTION
Mr. Hale applied for a writ of habeas corpus under 28 U.S.C. S 2241. Doc.
I at 4-14. 1 The district court dismissed the matter for lack of statutory jurisdiction.
Doc. 18 at 98-108. Mr. Hale filed a timely motion to reconsider under Rule 59(e)
of the Federal Rules of Civil Procedure. Doc. 24 at 154-65. The district court
denied the motion on July 21, 2014. Doc. 26 at 169-71. Mr. Hale timely noticed
an appeal on July 31, 2014. Doc. 27 at 172-76. This Court has jurisdiction over
the final decision of the district court. 28 U.S.C. 1291.
Nevertheless, as demonstrated below, the district court correctly ruled that it lacked statutory jurisdiction over Mr. Hale's habeas application.
STATEMENT OF THE ISSUES
1. In this Court, the "savings clause" in 28 U.S.C. 2255(e) allows a prisoner
to challenge his detention under 28 U.S.C. S 2241 only if the prisoner's argument could not have been tested in an initial 2255 motion. Mr. Hale argues that he is
actually innocent. He does not rely on any new evidence. Because he could have tested his argument in his initial 2255 motion, did the district court correctly rule
that Mr. Hale could not resort to the savings clause?
In accordance with 10th Cir. R. 28. I(A), references to the record shall be to the docket number and the consecutive page number printed by the Court's Electronic Filing System on the top right corner of the page. References to a page of Mr. Hales's opening brief shall be to the hand-numbered page number on the bottom of the page
2. Under S 2255(h), newly discovered evidence may be the basis for a second or successive 2255 motion. When that evidence falls short, failure to obtain relief under 2255 does not establish that the remedy so provided is either inadequate or ineffective. Mr. Hale argues that he possesses new evidence of misconduct by his jury foreman. Even if that evidence falls short, has he shown that the remedy in 2255 is inadequate or ineffective under the savings clause, allowing him to proceed by way of a S 2241 application?
STATEMENT OF THE CASE AND FACTS
A. Mr. Hale's previous S 2255 motion
Mr. Hale was convicted in the United States District Court for the Northern District of Illinois of obstructing justice and soliciting a crime of violence—in
particular, the murder a federal district judge. He was sentenced to 480 months in prison. He appealed, and the Seventh Circuit on direct appeal affirmed the judgment of conviction. See United States v. Hale, 448 F.3d 971 (7th Cir. 2006)
(per curiam), cert. denied, 549 U.S. 1158 (2007).
Mr. Hale then challenged his convictions by way of a timely filed motion under 28 U.S.C. 2255. He raised two grounds in his motion: violation of his Sixth Amendment right to effective counsel, and violation of his right to be present at every critical stage of his trial. See Hale v. United States, 2010 WL 2921634, *1
(N.D. Ill. July 22, 2010) (unpublished). The Northern District of Illinois denied his
motion, id. at 37, and subsequently denied his request for reconsideration of the court's order. See Hale v. United States, 2011 WL 5104630 (N.D. Ill. Oct. 27,
2011) (unpublished). Mr. Hale appealed and the Seventh Circuit affirmed the district court's order denying his S 2255 motion. See Hale v. United States, 710 F.3d 71 1 (7th Cir.), cert. denied, 134 S. ct. 333 (2013).
B. Mr. Hale's present habeas application under S 2241
Mr. Hale then filed his S 2241 habeas application in the District of Colorado, raising eight claims for relief. Doc. 1 at 4-14. Only two of them are relevant here, namely, claims one and seven. See Opening Brief at 6 ("He appeals these claims
one and seven only."); id. at 67 (requesting reversal of the district court's order only as to claims one and seven).
Mr. Hale alleged in claim one that his Fifth and Eighth Amendment rights were violated because he is factually and legally innocent and is being held for
conduct that is not criminal. Doc. 1 at 9. He contended in claim seven that his Fifth and Sixth Amendment rights to a fair trial and impartial jury were violated because a juror was prejudiced against him. Id. at 13-14.
The magistrate judge, after reviewing application, ordered Mr. Hale to show
cause why the matter should not be dismissed because he has an adequate and effective remedy in the sentencing court pursuant to 2255. Doc. 7 at 58-63. Mr.
Hale filed his response to the magistrate judge's order. Doc. 8 at 64-78.
The district court ordered the matter dismissed for lack of statutory jurisdiction. Doc. 18 at 98-108. It noted that, by way of his habeas application, Mr. Hale was challenging the validity of his criminal conviction, Doc. 18 at 100-01, and that "the 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." Doc. 18 at 100 (quoting Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965)).
The district court ruled that Mr. Hale failed to demonstrate that the remedy
available in the sentencing court pursuant to 2255 was inadequate or ineffective.
Doc. 18 at 107.
Mr. Hale filed a motion to reconsider under Rule 59(e) of the Federal Rules of Civil Procedure, Doc. 24 at 154-65, but the district court denied the motion.
Doc. 26 at 169-71.
This appeal followed.
The "savings clause" in 28 U.S.C. S 2255(e) allows a prisoner to employ 28
U.S.C. S 2241 to challenge his detention if the remedy available under 28 U.S.C.
S 2255 is inadequate or ineffective.
1. The test in this Court in detemining whether the savings clause allows a 2241 application is whether the prisoner's argument could have been tested in an initial 2255 motion. Mr. Hale challenges his detention under S 2241, arguing that he is actually innocent and has always been innocent. He does not rely on any new evidence. Mr. Hale could have tested his "actual innocence" argument in his initial 2255 motion. Therefore, the district court correctly rule that it lacked statutory jurisdiction to consider Mr. Hale's S 2241 application, because the remedy available under S 2255 was not inadequate or ineffective.
2. Under 28 U,S.C. 2255(h), newly discovered evidence may be the basis for
a second or successive 2255 motion. When that evidence falls short, failure to obtain relief under 2255 does not establish that the remedy so provided is either inadequate or ineffective. Mr. Hale argues that he possesses new evidence of misconduct by his jury foreman. The district court correctly ruled that even if that evidence falls short, Mr. Hale has not shown that the remedy in S 2255 is inadequate or ineffective under the savings clause, thereby allowing him to proceed by way of a 2241 application.
The district court's order dismissing Mr. Hale's S 2241 for lack of statutory
jurisdiction should be affirmed.
ARGUMENT
The District Court Correctly Dismissed Mr. Hale's First Claim for Lack of Statutory Jurisdiction.
A. Issue Raised and Ruled Upon Below
Mr. Hale argued in claim one of his habeas application that he is "factually
and statutorily innocent as a matter of law," that S 2255 is inadequate or ineffective to test the legality of his detention, and that as a consequence he may bring his innocence claim by way of S 2241. Doc. 1 at 9. He also argued that S 2255 is unconstitutional "to the extent it could be found that section 2255 indeed bars Hale's innocence claim." Doc. 3 at 28. In particular, he asserted that "If an innocent person is denied his freedom because of a statutory prohibition, he is denied the process that he is due thus violating the Fifth Amendment. If he continues to be imprisoned for conduct that is not criminal, he suffers cruel and unusual punishment thus violating the Eighth Amendment. The district court disagreed, ruling that it lacked statutory jurisdiction over claim one. Doc. 18 at 101-04, 105-08.
B. Standard of Review
When reviewing the denial of a habeas petition under S 2241, this Court reviews the district court's legal conclusions de novo and accepts its factual findings unless clearly erroneous. al-Marri v. Davis, 714 F.3d 1183, 1186 (10thCir. 2013).
findings unless clearly erroneous. al-Marri v. Davis, 714 F.3d 1183, 1186 (10th
Cir. 2013).
C. Discussion
1. Mr. Hale could have raised his "actual innocence" claim in his initial S 2255 motion.
The purposes of an application for a writ of habeas corpus under 28 U.S.C.
2241, and a motion under 28 U.S.C. 2255, are distinct and well established. "A petition under 28 U,S.C. S 2241 attacks the execution of a sentence rather than its validity" and "Cal 28 U.S.C. S 2255 petition attacks the legality of detention." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A habeas corpus petition under S 2241 "is not an additional, alternative, or supplemental remedy, to the relief afforded by motion in the sentencing court under S 2255." Williams v.
United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam). Instead, "ttlhe 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." Johnson v.Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see 28 U.S.C. 2255(e).
Mr. Hale has already filed a 2255 motion. He now wants another bite of the apple. He claims that the 2255 remedial process is ineffective or inadequate to allow for review of his claim that he is actually innocent of obstructing justice and soliciting a murder. See Doc. 1 at 5-6, 9; Opening Brief at 12-17.
Mr. Hale bears the burden of demonstrating that the "savings clause" in S 2255(e) applies to his case; in other words, that the remedy available under
2255 is inadequate or ineffective. See Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011). This burden is not easily met because only in "extremely limited circumstances" will 2255 be considered inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). For example, the savings clause may
be available 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).
The test for determining whether the remedy provided in the sentencing
court under S 2255 is inadequate or ineffective is set forth in Prost. See Abernathy
v. Wandes, 713 F.3d 538, 547 (10th Cir. 2013). This Court asks "whether a petitioner's argument challenging the legality of his detention could have been
tested in an initial 2255 motion. If the answer is yes, then the petitioner may not
resort to the savings clause and 2241." Prost, 636 F.3d at 584. As this Court emphasized in Prost, the savings 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 Prost, this Court found that Mr. Prost did not demonstrate the inadequacy or ineffectiveness of the S 2255 remedy because the argument he made could have been made in his first 2255 motion, even if the argument was foreclosed by then-controlling circuit court precedent. Id. at 590.
This Court held that if "a petitioner's argument challenging the legality of his
detention could have been tested in an initial S 2255 motionE,J
. then the petitioner may not resort to ...S 2241." Id.
Mr. Hale could have tested his "actual innocence" claim in his initial 2255 motion. He does not argue, nor has he shown, that he was unable to raise an actual innocence claim in that motion. Indeed, he has not attempted to explain why he did not do so.
Mr. Hale also does not base his actual innocence claim on newly discovered evidence. See generally Opening Brief; see also Doc. 3 at 25 (noting that he does not have newly discovered evidence of his innocence). Instead, Mr. Hale simply disagrees with the jury's conclusions based on the evidence presented at his jury trial. He claims that the evidence did not satisfy the elements of either obstruction of justice or solicitation of a crime of violence. Opening Brief at 12-17.
Mr. Hale has therefore failed to demonstrate that the S 2255 remedy is inadequate or ineffective to test his claims. Accordingly, the district court correctly dismissed Mr. Hale's S 2241 application, as it lacked jurisdiction under 2241 to review the merits of his claims.
2. Mr. Hale's actual innocence claim is irrelevant.
Mr. Hale argues that he is actually innocent and thus a remedy must exist in
2241, because the remedy provided in 2255 is inadequate or ineffective to test the legality of his detention. Opening Brief at 18-19. In support, he relies on pre-
Prost decisions from this Court and on cases from other circuits that are not pertinent to this Court's analysis under Prost. Id. at 32, 34-35. But after Prost, the
only relevant question in this Court is whether Mr. Hale's claims could have been
raised in an initial S 2255 motion. See Prost, 636 F.3d at 584. "Under the Prost framework, a showing of actual innocence is irrelevant." Abernathy, 713 F.3d at 546 n. 7; see also id. at 546 n.6 (noting that this Court established its own savings clause test in Prost which does not include an actual innocence inquiry). "Accordingly, in resolving Mr. tHale'sJ appeal—and, more specifically, whether he may proceed under S 2241—we have no need to delve into whether Mr. CHaleJ
has made a threshold showing of actual innocence." Id. at 546 n. 7.2 The only relevant question is whether Mr. Hale could have raised his claims in his initial S 2255 motion. As shown above, he could have.
Even if this Court were to consider Mr. Hale's actual innocence claim, the
district court correctly found that he failed to demonstrate that he is actually innocent. The court noted that Mr. Hale "merely disagrees with the jury's conclusions based on the evidence presented." Doc. 18 at 103. Moreover, Mr. Hale's claim of actual innocence in his S 2241 application is based on only 18 lines of testimohy, see Doc. 3 at 19, a mere snippet of the evidence the jury considered in finding him guilty. On direct appeal, Mr. Hale challenged the sufficiency of the evidence underlying his convictions. See Hale, 448 F.3d at 982. The Seventh Circuit in its published decision set forth the considerable amount of evidence
3. This Court's holdings in Prost and Abernathy are applicable here.
Mr. Hale argues that this Court's holdings in Prost and Abernathy do not apply here because "the innocence that Hale asserts is fundamentally different from the 'innocence' that Mr. Prost and Mr. Abernathy asserted. Opening Brief at 26. He states that "rather than being 'innocent' merely due to a new, beneficial decision issued by the Supreme Court years after their alleged crimes took place, theJ has always been innocent." Id. (emphasis deleted). This is a distinction without a difference.
At issue in Prost and Abernathy was whether the prisoners in those cases could have tested their "actual innocence" claims in an initial 2255 motion. Abernathy, 713 F.3d at 551; Prost, 636 F.3d at 584. This case presents the same issue. Mr. Hale is not claiming that he has new evidence of his actual innocence that could not have been presented earlier; instead, he relies on the evidence that was before the jury at his trial. Because his challenge to the legality of his detention could have been tested in an initial 2255 motion, he cannot bring that challenge now in his S 2241 application. Prost, 636 F.3d at 584.presented to the jury. Id. at 975-79. The circuit court found that the evidence was
sufficient to support Mr. Hale's convictions. Id. at 982-85.
4. The exclusive remedy provision of S 2255(e) does not violate either the Fifth Amendment or the Eighth Amendment.
Mr. Hale now presses the argument that was not squarely presented to this Court in either Prost or Abernathy; that precluding him from seeking relief under 2241 violates his constitutional rights. In support he relies on the Second Circuit's decision in Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), see Opening Brief at 39, 41; and the Southern District of New York's decision in
Alexander v. Keane, 991 F. Supp. 329 (S.D.N.Y. 1998), see Opening Brief at 42-43. Neither case demonstrates that Mr. Hale's constitutional rights have been violated. In Triestman, the Second Circuit held that 2255 may be inadequate or ineffective in circumstances in which c't l) the petitioner cannot, for whatever reason, utilize S 2255, and L2J in which the failure to allow for collateral review
would raise serious constitutional questions.'124 F.3d at 377. The circuit court found the first criterion met because Triestman's initial 2255 motion was dismissed on the merits and the claim of actual innocence he was raising did not satisfy either of the gate-keeping requirements in 2255(h) for second or successive S 2255 motions. Id. at 372. It found the second criterion met because Triestman could not have raised his actual innocence claim in his initial S 2255 motion. Id. at 380. A year later the Southern District of New York in Alexander opined that "procedural bars to hearing actual innocence claims—even if there was some prior opportunity (but not a prior federal rejection of the merits)—raise serious constitutional concerns." 991 F. Supp. at 337.
But in 2001, the Second Circuit in Jiminian v. Nash, 245 F.3d 144 (2d Cir.2001), added a corollary to Triestman 's holding. See Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004). The circuit court ruled in Jiminian that "serious constitutional questions" are not raised when S 2255 prevents a prisoner from asserting in a 2241 application a claim that he or she could have asserted on direct review or in an earlier S 2255 motion. Jiminian, 245 F.3d at 147-48. Thus, not only does Jiminian significantly modifr Triestman 's holding, it also expressly rejects the Southern District's statement in Alexander that serious constitutional concerns are raised even if the prisoner had a prior opportunity to present the issue.
The actual innocence claim Mr. Hale seeks to raise was previously available to him. Thus, failure to permit review of that claim under 2241 would not "raise serious constitutional questions." Jiminian, 245 F.3d at 147-48. 3
Although Mr. Hale does not rely in his Opening Brief on the Third Circuit's
decision in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), that decision is
inapposite for the same reason. The Third Circuit permitted resort to 2241 because Dorsainvil "had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate. Id. at 251.
Unlike Dorsainvil, Mr. Hale had that opportunity.There may be situations where 2255(e)'s savings clause should be interpreted to avoid "serious constitutional questions." This Court recognized in Prost that the savings clause may be available "when the application of S 2255(h)'s bar against a second or successive motion for collateral review would seriously threaten to render the 2255 remedial process unconstitutional," 636 F.3d at 593. This Court did not, however, identify in Prost any circumstances that would be serious enough to trigger this concern.This case does not present one of those situations. There can be no dispute that Mr. Hale has had a full, fair and meaningful opportunity to challenge the legality of his detention. See Crane v. Kentucky, 476 U.S. 683, 690 (1986) (the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense) (citations omitted); Mathews v. Eldridge, 424 U.S. 319, 348 (1976) ("The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it." ) (internal citations omitted). Indeed, Mr. Hale has had multiple opportunities—at trial, on direct appeal, and in his first 2255 motion—to argue that he was actually innocent of the charges against him. Because the Constitution guarantees him that opportunity, and he was in fact given the opportunity, the savings clause does not authorize him to bring his claim in a habeas corpus petition under 2241. The
district coult correctly concluded that Mr. Hale's constitutional arguments do not
withstand scrutiny. Doc. 18 at 107.4
5. The district court did not require Mr. Hale to present "new" evidence of his innocence.
Mr. Hale contends the district court erred by requiring him to present "new"evidence of his innocence. Opening Brief at 45-47. There was no error. The district court noted that Mr. Hale was claiming he was "actually innocent." Doc. 18 at 103. It correctly cited the Supreme Court's decision in Schlup v. Delo, 513 U.S. 298 (1995), for the proposition that a credible claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial.' Doc. 18 at 103 (quoting Schlup, 513 U.S. at 324). And it correctly noted that Schlup required Mr. Hale to demonstrate "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id.
Although the district court did not rely on these precise grounds in rejecting Mr.
Hale's constitutional claim, a new legal theory can be considered on appeal if it "presents an altemative ground for affirming a lower court ruling on a pure question of law." U.S. v. Hernandez-Garduno, 460 F.3d 1287, 1293 (10th Cir.
2006) (citations omitted).
6. McQuiggin does not provide a "gateway" to Mr. Hale's "actual innocence" argument.
Mr. Hale argues that McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), provides an "actual innocence" exception to a procedural bar. Doc. 8-1 at 70-76;Opening Brief at 47-52. He contends that McQuiggin should be extended to 2241 cases. Id.Supreme Court decisions prior to McQuiggin provided that "a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims." McQuiggin, 133
S. Ct. at 1928 (citing schlup and House v. Bell, 547 U.s. 518 (2006)). In McQuiggin, the Supreme Court held that a convincing showing of actual innocence equitably tolls 28 U.S.C. statute of limitations on federal habeas petitions brought by state prisoners—and provides a gateway through which a S 2254 habeas petitioner may overcome the limitations period. Id.
The district court correctly ruled that the equitable exception announced in McQuiggin does not benefit Mr. Hale, First, the district court correctly ruled that Mr. Hale's claims are barred by 2255(e), a statutory provision that imposes a jurisdictional bar. See Abernathy, 713 F.3d at 557 (pointing out that failure to satisfy 2255(e)'s savings clause test deprives the court of statutory jurisdiction).
McQuiggin 's ruling, allowing an equitable exception to a procedural bar, does not overcome a jurisdictional bar. See Strickland v. English, No. 5: 13-cv-248-RSEMT, 2013 WL 4502302, *8 (N.D. Fla. Aug. 22, 2013) (unpublished); see also Whitehorse v. United states, No. 13-CV-2922 (PJS/JJK), 2014 WL 668176, *2 (D.Minn. Feb. 20, 2014) (unpublished) ("McQuiggin does not stand for the proposition that all impediments to post-conviction relief are inapplicable to claims of actual innocence."). Mr. Hale faces the jurisdictional bar in 2255, and thus MeQuiggin is apposite.
Second, the district court correctly ruled that even if the equitable exception announced in McQuiggin could be applied to the jurisdictional bar in 2255(e), Mr. Hale still failed to make a credible showing of actual innocence. As discussed above, Mr. Hale's disagreement with the jury's determination of guilt did not constitute new and reliable evidence of actual innocence.
Il. The District Court Correctly Dismissed Mr. Hale's Seventh Claim for Lack of Statutory Jurisdiction.
A. Issue Raised and Ruled Upon Below
In claim seven of his habeas application, Mr. Hale argued that the foreman
of his jury was not impartial and committed misconduct. Doc. 3 at 38. Mr. Hale alleged that he learned this information in October 2011, more than three years after he had filed his 2255 motion. Doc. I at 13. He argued that a 2255 motion would be inadequate or ineffective to test the legality of his juror misconduct claim. Id. In addition, he argued that construing 2255 as barring a claim ofjuror
prejudice and misconduct would violate the Fifth Amendment. Id. at 13-14.
The district court disagreed, ruling that it lacked statutory jurisdiction over claim seven. Doc. 18 at 104-05.
B. Standard of Review
When reviewing the denial of a habeas petition under S 2241, this Court reviews the district court's legal conclusions de novo and accepts its factual findings unless clearly erroneous. al-Marri, 714 F.3d at 1186.
C. Discussion
Mr. Hale argues that he possesses new evidence of misconduct by his jury foreman. Mr. Hale's new claim is based on the Jury foreman's testimony at a later proceeding, after Mr. Hale was convicted, where the foreman stated: "I was worried about my safety and my partner's safety because .. ,
I'm a white person with an African-American man and we had known that Benjamin Smith went on a shooting rampage after being part of Matthew Hale's group, and so that was his way of showing obedience or faith to Matthew Hale, and I felt really vulnerable.
Doc. 3 at 28. According to Mr. Hale, the foreman had disobeyed the trial court's order not to read media coverage about the case. Doc. 1 at 13. Mr. Hale asserts that he discovered this new evidence in 2011, three years after he filed his S 2255 motion. Opening Brief at 53.
Because Mr. Hale claims this new evidence was not discovered until after he filed his 2255 motion, he argues he could not have based his 2255 motion on this evidence and thus the remedy provision of 2255 is inadequate or unavailable. But he has not shown that he could not have moved to file a second S 2255 motion based on this evidence.
In 28 U.S.C. S 2255(h), second or successive 2255 motions are available if the movant shows either (l) clear and convincing newly discovered evidence the prisoner was not guilty of the offense, or (2) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review. See Prost, 636 F.3d at 583—84. Mr. Hall does not allege, and there is no evidence showing, that he has sought and been denied the ability to bring a second 2255 motion in the sentencing court based on this new evidence. Even if Mr. Hale's new evidence does not ultimately satisfy the requirements of 2255(h)(l)--because it may not constitute clear and convincing newly discovered evidence that he was not guilty of the offense, or because he brought this new evidence to the attention of the district court out of time that does not alter the conclusion that newly discovered evidence may be the basis for a second or successive S 2255 motion. "LTJhe mere fact that Ethe prisoner) is precluded from filing a second 2255 petition does not establish that the remedy in 2255 is inadequate." Caravalho, 177 F.3d at 1179. As this Court stated in Jameson v. Samuels, 555 F. App'x 743 (10th Cir. Jan. 28, 2014) (unpublished): "Although S 2255(h)(1) contemplates that new evidence may be a basis for a second or successive petition, when that evidence falls short, 'LfJailure to obtain reliefunder S 2255 does not establish that the remedy so provided is either Id. at 746 (quoting Prost, 636 at 585) (emphasis and inadequate or ineffective. "' alteration in original).
Mr. Hale also argues that his Fifth Amendment right to due process would be violated if the savings clause does not permit him to bring his juror misconduct claim under S 2241, Opening Brief at 60-66. But, as noted above, Congress has authorized a second or successive S 2255 motion under certain circumstances. Mr.Hale was not denied the opportunity to seek leave to file such a motion based on
juror misconduct. "The savings clause doesn't guarantee results, only process.' Prost, 636 F.3d at 590.
Certainly, this Court in Prost "left open the possibility that this circuit in a future case might permit a petitioner in Mr. Prost's position to invoke the savings clause for the constitutional avoidance reasons stated by the Second and Third Circuits tin Triestman and Dorsainvil, respectively)." Prost, 636 F.3d at 598 n. 15. But the Second and Third Circuits have generally construed the savings clause to permit the filing of a habeas corpus petition pursuant to 2241 only when a change in statutory construction made retroactive by the Supreme Court established that the petitioner had been found guilty of what turned out to be a non-existent offense. See Triestman, 124 F.3d at 378-79 ("LWJe find that serious Eighth Amendment and due process questions would arise with respect to the AEDPA if
we were to conclude that, by amending 2255, Congress had denied Triestman the right" to challenge by way of a 2241 petition his claim of actual innocence based on the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995)); Dorsainvil, 119 F.3d at 248 ("Were no other avenue ofjudicial 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."). Mr. Hale's juror misconduct claim does not fall within this small class of situations. He does not raise a claim of actual innocence in connection with his juror misconduct claim. See generally Opening Brief. He has not shown, even under Second and Third Circuit jurisprudence, that "serious constitutional questions would arise" if he is not permitted to pursue his 2241 application.
Finally, Mr. Hale argues that the savings clause in 2255(e) must apply to some claims not covered by S 2255(h). Opening Brief at 58-59. This Court has suggested that 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). This case does not fall into any of those categories. As shown above, Mr. Hale could have filed a timely motion for leave to file a second or successive S 2255 motion, raising his new evidence of alleged juror misconduct. He hasn't done so. This case does not present a claim "not covered by S 2255(h).'
CONCLUSION
The district court's order dismissing Mr. Hale's S 2241 habeas application for lack ofjurisdiction should be affirmed and this matter should be dismissed.
STATEMENT REGARDING ORAL ARGUMENT
This appeal raises no novel issues that cannot be decided by the application of existing precedent and well-established legal principles. Therefore, oral argument would not materially assist the Court in its determination of this appeal.
DATED: November 5, 2014
Respectfully submitted,
JOHN F. WALSH
United States Attorney
s/ Michael C. Johnson
MICHAEL C. JOHNSON
Assistant United States Attorney
1225 17th street, Suite 700
Denver, Colorado 80202 (303) 454-0100
Email: USACO.ECFAppe11ate@usd0j.gov Michael.Johnson2@usdoj.gov
Attorneys for Appellee
David Berkebile, Warden
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