Perez-Carrera v. Stancil

After pleading guilty to bank robbery, gun, and other federal charges, Jose

Perez-Carrera unsuccessfully pursued many different collateral challenges to his

sentence over the course of many years. All these efforts took place in the First

Circuit where his plea was received. See Perez-Carrera v. United States, No. 12

1716, 2014 WL 68794 (D.P.R. Jan. 8, 2014) (summarizing the proceedings).

Failing those efforts in that circuit he now seeks relief in this one, where he is

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 This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

incarcerated. Normally, of course, a federal defendant must seek relief from a

conviction or sentence under 28 U.S.C. § 2255 in the circuit of his conviction.

But Mr. Perez-Carrera claims he is entitled to relief in this court under 28 U.S.C.

§ 2241. And it’s true enough that a party may seek relief in the circuit of his

incarceration under § 2241 when he can establish that § 2255’s remedy is

“inadequate or ineffective to test the legality of his detention.”

But like the district court we do not see how that might be the case here.

To be sure, Mr. Perez-Carrera says that his sentence is illegal in light of

Alleyne v. United States, 133 S. Ct. 2151 (2013). He suggests, too, that he cannot

pursue an Alleyne argument in the First Circuit under § 2255 because Alleyne

isn’t available to those (like him) who seek to pursue second or successive § 2255

motions since that decision did not announce “a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court,” as defined

by § 2255(h)(2). See generally In re Payne, 733 F.3d 1027, 1029 (10th Cir.

2013). But despite some slight variations in the circuits over the optimal reading

of § 2255(e), we know of no court decision holding that § 2255(h)(2)’s restriction

on the retroactive effect of new constitutional decisions in second or successive

§ 2255 motions automatically and alone renders that statutory scheme inadequate

or ineffective to test the legality of a prisoner’s detention and permit resort to

§ 2241: indeed, such a reading would threaten to render § 2255(h)(2) surplusage.

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Neither does Mr. Perez-Carrera attack the existing § 2255 statutory regime as

unconstitutional. See generally Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir.

2010); Prost v. Anderson, 636 F.3d 578, 586, 591 (10th Cir. 2011).

Finally and in any event, Mr. Perez-Carrera hasn’t shown how he might

prevail even if he were allowed to proceed under § 2241. He says his sentence is

illegal in light of Alleyne. But in Alleyne the Supreme Court held that a fact

triggering a mandatory minimum sentence is one to which a jury trial right

normally attaches under the Sixth Amendment. And in his underlying criminal

case Mr. Perez-Carrera waived his right to trial by jury and doesn’t explain how,

given that, Alleyne might aid him. Neither does he explain what mandatory

minimum triggering fact the district court found in his case. Certainly the district

court’s cognizance of his guilty plea doesn’t qualify as an exercise of

impermissible judicial fact-finding under Alleyne. And while we must construe

his pro se pleadings liberally, we are not free to devise other possible new

alternative arguments for Mr. Perez-Carrera that he does not pursue for himself.

See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005).

The judgment of the district court is affirmed. Mr. Perez-Carrera’s motion

to proceed in forma pauperis is denied and he is reminded that he must pay the

filing fee in full.