(D. of Colo.)
(D.C. No. 12-cv-01360-LTB)
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Carl Haskell appeals pro se the dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2241 and moves for leave to proceed in forma pauperis on appeal. We deny Haskell's motion and affirm the district court's dismissal of the habeas petition.
Following a jury trial in 2002 in the Western District of Missouri, Haskell was convicted of murdering a federal witness in violation of 18 U.S.C. § 1512(a)(1)(C), among other statutes, and conspiracy to murder a federal witness in violation of 18 U.S.C. § 371. He was sentenced to life in prison plus five years. On direct appeal, his conviction was affirmed. United States v. Haskell, 468 F.3d 1064 (8th Cir. 2006), cert. denied, 550 U.S. 965 (2007).
After the appeal, Haskell exercised his right under 28 U.S.C. § 2255 to collaterally attack the conviction. According to § 2255(e), a prisoner may collaterally attack his conviction only if he files his motion for relief in "the court which sentenced him . . . ." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (dismissing without prejudice a collateral attack on the legality of a prisoner's detention so the prisoner could refile in the court in which he was sentenced). Haskell filed his § 2255 motion in the Western District of Missouri, but the motion was denied on the merits. Haskell v. United States, No. 08-0377-CV-W-FJG, 2009 WL 877681 (W.D. Mo. Mar. 30, 2009).
When a prisoner is denied relief on his first § 2255 motion, as happened here, the prisoner cannot file a second § 2255 motion unless he can point to either "newly discovered evidence" or "a new rule of constitutional law," as those terms are defined in § 2255(h). See Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011). The prisoner can, however, file a habeas petition in the district in which he is incarcerated under 28 U.S.C. § 2241, but only if he first shows that a § 2255 motion is "inadequate or ineffective to test the legality of his detention." Id. (quoting § 2255(e)). See generally id. at 582-84. "Failure to obtain relief under [§] 2255 does not establish that the remedy so provided is either inadequate or ineffective." Bradshaw, 86 F.3d at 166 (internal citation and quotation marks omitted).
Haskell was serving his sentence in the United States Penitentiary in Florence, Colorado, when he initiated this action in the District of Colorado by filing pro se an application for a writ of habeas corpus pursuant to § 2241. In his application, Haskell alleged, first, that his conviction for murdering a federal witness in violation of § 1512(a)(1) must be vacated in light of Fowler v. United States, 131 S. Ct. 2045 (2011) (holding that, in order to prove a violation of § 1512(a)(1)(C), the government must show a "reasonable likelihood" that a relevant communication would have been made to a federal officer but for the victim's death); second, that his conviction for conspiracy must be vacated in light of Richardson v. United States, 526 U.S. 813 (1999) (holding that, in order to find a violation of 21 U.S.C. § 848(a), the jury must unanimously agree the defendant committed each of the individual drug-statute violations which constitute a "continuing criminal enterprise"); and third, that he is actually innocent because there was insufficient evidence to convict him of either offense.
Haskell has since been transferred to the United States Penitentiary in Beaumont, Texas.
The district court rejected Haskell's application. The court concluded that Haskell failed to demonstrate the inadequacy or ineffectiveness of his prior § 2255 motion for relief, because, pursuant to our decision in Prost, a new Supreme Court case interpreting a statute is not a proper ground for concluding that a prior § 2255 action was "inadequate or ineffective." See Prost, 636 F.3d at 584. Further, reasoned the court, Haskell could have cited Richardson, a 1999 case, in his prior § 2255 motion (filed in 2008), and Haskell made no showing as to why he could not have fully briefed and argued his insufficiency-of-the-evidence claim in that same § 2255 motion as well. Consequently, the district court concluded Haskell was not entitled to habeas relief and dismissed his action. See Haskell v. Daniels, No. 12-cv-01360-LTB, 2012 WL 3591035 (D. Colo. Aug. 21, 2012).
On appeal, Haskell argues that his prior § 2255 motion was inadequate or ineffective because Fowler was not available when he brought the motion, and in Fowler, the Supreme Court reinterpreted § 1512(a)(1) such that the evidence at his trial was insufficient to sustain his conviction. The question before us, then, is whether a new Supreme Court decision reinterpreting a statute that may undo a prisoner's conviction renders the prisoner's initial § 2255 motion "inadequate or ineffective," thereby enabling the prisoner to pursue a habeas petition under § 2241.
This is a question we answered in the negative in Prost, and on that ground, we agree with the district court that Haskell cannot resort to § 2241 here. In Prost, we held that if "a petitioner's argument challenging the legality of his detention could have been tested in an initial § 2255 motion[,] . . . then the petitioner may not resort to . . . § 2241." 636 F.3d at 584 (emphasis added). In his application for habeas relief, Haskell argued that the government failed to prove he knew his victim was in fact a federal witness at the time he murdered the victim, and therefore the government could not have convicted him for violating § 1512(a)(1) as a matter of law. But nothing about the procedure of Haskell's prior § 2255 motion prevented him from making this same argument then. Admittedly, he could not have relied on Fowler, a 2011 Supreme Court decision, when he brought his § 2255 motion in 2008. But it was no different for the petitioner in Prost—he too might have benefitted from a cite to a Supreme Court decision announced after his § 2255 motion, but we concluded that having a new Supreme Court decision to cite was not reason enough to find the original § 2255 motion "inadequate or ineffective." Id. at 589.
Our review of the district court's denial of Haskell's habeas corpus petition is de novo. Bradshaw, 86 F.3d at 166.
We express no opinion on the applicability of Fowler to Haskell's claim. We do note, however, that Haskell misstates the Fowler holding. According to Haskell, the Supreme Court held that, to prove a violation of § 1512(a)(1), the government must present evidence showing "beyond a reasonable doubt" that the defendant "kn[e]w that the victim murdered was a federal witness . . . ." R., Vol. I, at 13 (Haskell's brief to the district court) (emphasis omitted). In fact, the Fowler Court held that, to prove a violation of § 1512(a)(1)(C) specifically, the government must show "that there was a reasonable likelihood that a relevant communication would have been made to a federal officer" but for the victim's death. 131 S. Ct. at 2048 (emphasis in original).
Nor do the cases Haskell cites in his brief—In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), and Alaimalo v. United States, 645 F.3d 1042 (9th Cir. 2011)—demand a different result. Our decision in Prost already addressed In re Dorsainvil, noting that the Third Circuit raised "an important question" about the existence of a constitutional exception to § 2255(h)'s bar to a second collateral attack but declining to address the question because the petitioner in Prost "at no point . . . develop[ed] any argument why [denying him access to § 2241 or to a second § 2255 would violate the Constitution], or even identif[ied] what provision of the Constitution he thinks would be offended by the imposition of § 2255(h)'s bar in his case." 636 F.3d at 594. Haskell's brief is similarly deficient, so we again decline to address this question. See Aplt. Br. at 4 (arguing he should be able to once again collaterally attack his conviction "to avoid a miscarriage of justice," but failing to develop any constitutional argument justifying the creation of a new exception to § 2255(h) or § 2255(e)).
And in Prost we directly rejected the Ninth Circuit's position as expressed most recently in Alaimalo. See Prost, 636 F.3d at 589 (rejecting prior Ninth Circuit precedent, Harrison v. Ollison, 519 F.3d 952 (9th Cir. 2008)); Alaimalo, 645 F.3d at 1047-48 (following Harrison's approach).
In sum, Haskell's position has been fully addressed—and rejected—in Prost. And "[w]e cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court." In re Smith, 10 F.3d 723, 724 (10th Cir. 1993). Because Haskell could have made all of the arguments he made below in his prior § 2255 motion, we cannot say that his § 2255 motion was "inadequate or ineffective" under the savings clause of § 2255(e). Haskell therefore cannot bring this habeas petition under § 2241.
Accordingly, we AFFIRM the district court below, and we DENY Haskell's motion for leave to proceed in forma pauperis.
Entered for the Court,
Timothy M. Tymkovich