United States v. Ellsworth
United States v. Ellsworth
Opinion of the Court
ORDER AND JUDGMENT
Joseph Albert Ellsworth, a federal prisoner appearing pro se, appeals the district court’s order striking his attempted filing of an unauthorized second or successive 28 U.S.C. § 2255 motion. In his unauthorized § 2255 motion, Mr. Ellsworth attempted to raise sentencing claims that he failed to raise, and thus waived, on direct appeal or in his first § 2255 motion. Because the district court lacked jurisdiction to consider Mr. Ellsworth’s unauthorized filing, we affirm its order to strike.
Federal and State Convictions and Sentences. In 2000, Mr. Ellsworth pleaded guilty in federal court to interstate travel with intent to engage in sexual activity with a minor, and in Oklahoma state court for distributing obscene material to a minor, attempted lewd molestation and attempted lewd proposals to a child. The two convictions arose out of the same conduct, and for many years Mr. Ellsworth has been seeking to have the federal and state sentences run concurrently.
He was sentenced in federal court first: to thirty months’ imprisonment plus three years of supervised release. Contrary to Mr. Ellsworth’s assertions in his opening brief, the federal sentence was not ordered to run concurrent with the state sentence, and the plea agreement contains no promise that Mr. Ellsworth’s federal sentence would run concurrently or that he would serve his federal sentence before his expected state sentence.
Mr. Ellsworth was subsequently sentenced in state court to fifteen years’ imprisonment on one count, to run concurrent with the federal sentence, and ten years on the two other counts, to run concurrent with the first count. Mr. Ells-worth was taken into state custody first. As we recently explained in a factually similar case, “[although [Mr. Ellsworth’s]
In February 2008, after serving eight of the fifteen years of his state sentence, Mr. Ellsworth was released from state custody and immediately taken into federal custody to begin serving his federal sentence. Believing that his federal and state sentences were concurrent, that he had completed his federal sentence when he had served thirty months’ time in state custody, and that the federal government lacked authority to hold him in custody, Mr. Ellsworth attempted to file a “Motion for Writ of Habeas Corpus for Unlawful Imprisonment” in February 2008. The district court struck this motion as an unauthorized second or successive § 2255 motion, and Mr. Ellsworth appeals.
Procedural History of Post-Conviction Filings. When he filed his February 2008 motion, Mr. Ellsworth had previously filed a § 2255 motion challenging his federal sentence and a 28 U.S.C. § 2254 petition challenging his state sentence. A federal prisoner may not file a second or successive § 2255 motion, and a state prisoner may not file a second or successive § 2254 petition, unless the motion or petition is first authorized by a panel of the appropriate court of appeals based on a finding that the prisoner’s claim is based on new evidence of actual innocence or new, retroactively applicable constitutional law. See 28 U.S.C. §§ 2244(b) and 2255(h).
Mr. Ellsworth filed a § 2254 petition challenging his state conviction and sentence in March 2002. One of his claims was that the state violated his plea agreement because he was given repeated assurances that he would serve his federal sentence first, at a federal facility. The district court denied this § 2254 petition as time-barred, and Mr. Ellsworth did not appeal.
Mr. Ellsworth filed a § 2255 motion challenging his federal sentence in 2001. He claimed that the federal government violated an agreement that he would be sent to federal prison, rather than state prison. The district court correctly ruled that the federal plea agreement made no promises as to where Ellsworth would be first be in custody. The district court denied the § 2255 motion, and this court denied Mr. Ellsworth a certificate of appealability. United States v. Ellsworth, 55 Fed.Appx. 511, 512 (10th Cir. 2003).
Mr. Ellsworth attempted to file several second-or-successive § 2255 motions, all of which were denied either because he had not sought circuit-court authorization or because this court denied his authorization request. In one such motion for authorization, filed in 2006, Mr. Ellsworth argued that his federal sentence was to run concurrent with his state sentence and, therefore, the terms of his plea agreement had been violated and that he had been misled into pleading guilty. He claimed that he
Analysis. When Mr. Ellsworth filed his writ of habeas corpus in February 2008, the district court had previously explained the authorization requirements to him, and had warned him that it would strike any further unauthorized filings. The district court construed the February 2008 filing as an unauthorized § 2255 motion, ruled that it lacked jurisdiction because Mr. Ellsworth had not obtained authorization, and struck it.
We find no error. Mr. Ellsworth argues the district court should have construed his motion, captioned as a writ of habeas corpus, as an initial writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, rather than a successive § 2255 motion. A § 2255 motion challenges the propriety of the federal conviction or sentence as imposed, whereas a § 2241 motion challenges the execution of the federal sentence. See Eccleston, 521 F.3d at 1253. Mr. Ellsworth argues in his proposed motion and opening brief that his plea agreement provided for concurrent federal and state sentences, that his sentence violated his plea agreement and that he had, therefore, been misled into pleading guilty. These arguments are challenges to the sentence imposed and, thus, the district court was correct to characterize his motion as a § 2255 motion. See id. (“A challenge to the propriety of the federal conviction or sentence itself1 — such as whether [defendant] was misled when he pleaded guilty or whether the sentence violated his plea bargain — must proceed under § 2255, not § 2241 ... and could have been brought promptly after sentencing.”). Moreover, Mr. Ellsworth’s proposed motion states no viable § 2241 claim because there is no error in the execution of his federal sentence; contrary to his assertion, his federal sentence was not ordered to run concurrent with his state sentence and the concurrent state sentence does not alter the consecutive federal sentence. See id. at 1253-54.
Mr. Ellsworth argues that the district court erred when it concluded it could not order his federal sentence to run concurrent to his not-yet-imposed state sentence, citing United States v. Williams, 46 F.3d 57, 58-59 (10th Cir. 1995) (holding that there is no statutory prohibition on a district court ordering a federal sentence be served consecutively to a state sentence that has not yet been imposed, and that whether to impose a consecutive or concurrent sentence is a matter within the discretion of the district court). He also argues that his attorney was constitutionally ineffective in not making sure the plea agreement required concurrent sentences and that the district court ordered a concurrent sentence. These arguments, alleging error in the imposition of his sentence, could only have been raised at sentencing, on direct appeal and in Mr. Ellsworth’s
The district court did not have jurisdiction to address the merits of Mr. Ellsworth’s unauthorized second or successive § 2255 motion. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). “When a second or successive § 2254 or § 2255 claim is filed in the district court without the required authorization from this court, the district court may transfer the matter to this court if it determines it is in the interest of justice to do so under [28 U.S.C] § 1631, or it may dismiss the motion or petition for lack of jurisdiction.” Id. at 1252. As explained above, there is no meritorious claim in Mr. Ellsworth’s February 2008 motion that might have warranted a § 1631 transfer to this court to seek authorization. Because it lacked jurisdiction to consider the motion, the district court did not err in striking it.
Mr. Ellsworth’s motion for leave to proceed in forma pauperis is GRANTED. His motions for copies of transcripts are DENIED as moot because all relevant transcripts were attached to the government’s response brief. The order striking Mr. Ellsworth’s unauthorized motion is AFFIRMED.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 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.
. The judgment, plea agreement, and sentencing transcript are attached to the government’s response brief as Attachments A, C, and D, respectively. Mr. Ellsworth initialed each page of the plea agreement, which contains no promise or mention of a concurrent sentence, and states that the government does not and cannot make any promise as to sentencing and that the sentence will be determined solely by the judge. Resp. Br., Attach. C, at 9-11.
Reference
- Full Case Name
- United States v. Joseph Albert ELLSWORTH
- Status
- Published