                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 18, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 ALEX SONNI GLOVER, JR.,

              Petitioner - Appellant,

 v.                                                     No. 13-6259
                                                (D.C. No. 5:13-CV-00965-M)
 JOHN FOX,                                            (W.D. Oklahoma)

              Respondent - Appellee.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Defendant and petitioner, Alex Sonni Glover, Jr., proceeding pro se, seeks

a certificate of appealability (“COA”) to enable him to appeal the dismissal of his

action which we properly construe as a motion under 28 U.S.C. § 2255.

Concluding that Mr. Glover has failed to meet the requirements for issuance of a

COA, we deny him a COA and dismiss this matter.

      Mr. Glover has appeared several times before this court and the district

court. We summarize the history of this case, as stated in a recent district court


      *
       This order is not binding precedent, except under the doctrines of law of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.
decision involving Mr. Glover, in which he sought relief under 28 U.S.C. § 2255

from the Northern District of Oklahoma (the district in which he was originally

convicted and sentenced):

             On July 8, 2005, a grand jury returned a one count indictment
      charging defendant with being a felon in possession of a firearm in
      violation of 18 U.S.C. § 922(g)(1), and the indictment listed three
      prior felony convictions. Defendant pled guilty . . . . The PSR
      noted that defendant had five prior convictions that qualified as
      violent felonies under the ACCA . . . . One of those convictions was
      a 1996 Nevada conviction for larceny from a person . . . .
      [D]efendant was sentenced to 180 months imprisonment [and] the
      Tenth Circuit Court of Appeals affirmed.

United States v. Glover, 2013 WL 4097915, at *1 (N.D. Okla., Aug. 13, 2013)

(unpublished). Mr. Glover’s lengthy post-conviction proceedings then

commenced:

      On May 2, 2008, defendant filed a motion to vacate, set aside, or
      correct sentence under 28 U.S.C. § 2255. [The district court
      concluded that Mr. Glover] was still subject to the statutory
      mandatory minimum sentence of 15 years under the ACCA.
      Defendant sought a certificate of appealability from the Tenth Circuit
      but the Tenth Circuit denied his request . . . and dismissed his appeal.
      Defendant filed a motion for relief under 28 U.S.C. § 2241 and he
      argued that his conviction for larceny from a person was not a violent
      felony. The Court found that the defendant was attacking the
      validity of his sentence and his motion should be construed as a
      second or successive § 2255. Defendant next filed a motion for
      relief under Fed. R. Civ. P. 60(b)(6), and he argued that the court
      committed procedural error by using the modified categorical
      approach to find that his conviction for larceny from a person was a
      violent felony. The Court found that defendant’s motion was not a
      “true” Rule 60(b) motion and defendant was actually attacking the
      validity of his sentence. Thus, defendant’s motion was actually a
      second or successive § 2255 and the Court dismissed the motion for
      lack of jurisdiction. Defendant sought authorization from the Tenth

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      Circuit to pursue his claims through a second or successive § 2255
      motion, but the Tenth Circuit denied his request and found that he
      had previously raised the same arguments in numerous prior filings.
      Defendant has now filed another § 2255 motion challenging his
      sentence under the ACCA. He claims that the Supreme Court’s
      decision in Descamps [v. United States, 133 S. Ct. 2276 (2013)]
      constitutes an intervening change in the law and he has filed his
      motion within one year of the Descamps decision.

Id. (emphasis added; record citations omitted).

      The district court then determined that it lacked jurisdiction to consider

Mr. Glover’s second or successive § 2255 motion, “because defendant must

request permission from the Tenth Circuit to file a second or successive § 2255.”

Id. at *2 (citing 28 U.S.C. § 2255(h); United States v. Nelson, 465 F.3d 1145,

1148 (10th Cir. 2006). In so concluding, the district court specifically addressed

an argument Mr. Glover made based on the Supreme Court’s Descamps decision:

      Defendant argues that Descamps announced a new rule of law that
      was made applicable to cases on collateral review and that he would
      not be subject to sentencing under the ACCA based on the ruling in
      Descamps. In Descamps, the Supreme Court held that the California
      statute for burglary in the first degree was nondivisible and the
      district court erred by applying the modified categorical approach
      when sentencing the defendant under the ACCA. . . . Descamps
      concerns a matter of statutory interpretation as to whether a certain
      crime qualifies as a violent felony under the ACCA, and it did not
      announce a new rule of constitutional law. The Tenth Circuit has
      found that intervening judicial interpretations of statutory law, such
      as the ACCA, do not constitute a new rule of constitutional law
      under § 2255(h)(2). . . . Descamps did not announce a new rule of
      constitutional law and it is not likely that the Tenth Circuit would
      authorize the filing of a second or successive § 2255 motion.




                                         -3-
Id. at *3 (emphasis added). The court accordingly dismissed the matter for lack

of jurisdiction.

      Mr. Glover then filed the motion/petition which has generated the request

for a COA which is before us now. He filed this action in the Western District of

Oklahoma, and purported to bring it under 28 U.S.C. § 2241, claiming (before the

district court) that “28 U.S.C. § 2255 proves inadequate to test his detention’s

illegality.” Glover v. Fox, 2013 WL 5740449, at *1 (W.D. Okla., Oct. 22, 2013)

(unpublished). He further claimed that “the ‘savings clause’ allows him to

proceed under § 2241 because: (1) the Northern District of Oklahoma erred when

it denied his Taylor [v. United States , 495 U.S. 575 (1990)] claim; and (2) he

cannot raise a statutory argument in a second § 2255 motion.” Id. 1

      The district court correctly noted that the “threshold question is whether

[Mr. Glover’s] pleading is properly filed under § 2241.” Id. The district court

went on to reason as follows:

             Pleadings filed under § 2241 and § 2255 serve different and
      distinct purposes. A petition filed under § 2241 typically attacks the
      execution of a sentence rather than its validity and must be filed in
      the district where the prisoner is confined. A § 2255 motion, on the
      other hand, is generally the exclusive remedy for a federal prisoner
      seeking to attack the legality of detention, and must be filed in the
      district that imposed the sentence.



      1
       Mr. Glover’s “Taylor claim” is essentially his claim based upon Descamps,
concerning the appropriate characterization of his prior larceny conviction as a
violent felony or not.

                                         -4-
            Because [Mr. Glover] is challenging his sentence’s legality, his
      claim would ordinarily fall within the purview of a § 2255 motion.
      However, § 2241 could provide an avenue for relief under the limited
      circumstances provided in the so-called savings clause of § 2255.
      That savings clause provides that § 2241 may be appropriate to
      challenge a sentence’s legality if the remedy by § 2255 motion is
      inadequate or ineffective. However, a § 2255 motion will rarely be
      an inadequate or ineffective remedy to challenge a conviction.

             The measure of inadequacy or ineffectiveness is “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.
      The 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. at *2 (quoting Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011)).

      The district court then addressed Mr. Glover’s argument that the savings

clause of § 2255 permitted him to proceed under § 2241. The court rejected his

claim that the savings clause applied because the Northern District of Oklahoma

erred in denying him relief under his first § 2255 motion. “[A] petition under

§ 2241 is not available to a petitioner simply because a ‘court has denied him

relief,’” id. (quoting Prost, 636 F.3d at 584), even if such denial was erroneous.

The court also rejected his argument that he is unable to raise a statutory

argument in a second § 2255 motion, stating, “[a]gain, this argument does not

authorize Petitioner to proceed under § 2241. ‘The fact that § 2255 bars [Mr.

Glover] from bringing his statutory interpretation now, in a second § 2255 motion




                                         -5-
. . . , doesn’t mean the § 2255 remedial process was ineffective or inadequate to

test his argument.’” Id. (quoting Prost, 636 F.3d at 580).

      The district court therefore concluded that Mr. Glover’s pleading had to be

construed as a motion arising under § 2255. As such, the district court below

lacked jurisdiction: “[b]ecause a petitioner must file a § 2255 motion in the

original sentencing court—here, the Northern District of Oklahoma—this Court

[the Western District of Oklahoma] lacks jurisdiction over the action.” Id. at *3

(citing 28 U.S.C. § 2255(a)). The court then determined that “transfer to the . . .

Northern District of Oklahoma would be futile, as that court would also lack

jurisdiction over [Mr. Glover’s] second and successive § 2255 motion.” Id. That

is so because, as we have stated before, “[a] district court does not have

jurisdiction to address the merits of a second or successive § 2255 . . . claim until

[the Tenth Circuit] has granted the required authorization.” In re Cline, 531 F.3d

1249, 1251 (10th Cir. 2008). The district court thus dismissed the petition

without prejudice, for lack of jurisdiction. Mr. Glover seeks a COA in order to

appeal that dismissal.

      “A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus.” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); see

28 U.S.C. § 2253(c)(1)(A). A COA should issue “only if the applicant has made

a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2); he can do this by demonstrating “that reasonable jurists could

                                          -6-
debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Dodd v. Trammell, 730 F.3d 1177,

1205 (10th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      An applicant denied habeas relief on procedural grounds “must also show

‘that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281

(10th Cir. 2008) (quoting Slack, 529 U.S. at 484). “Where a plain procedural bar

is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Slack, 529 U.S. at 484.

      Based on these standards and the thorough analysis undertaken by the

district court, we are satisfied that no COA should issue. As the district court

correctly recited, Mr. Glover has filed numerous collateral petitions, in two

different federal courts (the Northern and Western Districts of Oklahoma), to

challenge the same conviction, on essentially the same grounds. Indeed, before

our court he again makes the argument, based upon Descamps, which he made

unsuccessfully several times below. We perceive no error in the district court’s

meticulous explanation for why Mr. Glover’s proceeding must be dismissed.




                                           -7-
For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




                               -8-
