                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                              August 24, 2017
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
JOHNNY SCOTT WARREN,

      Petitioner - Appellant,
                                                              No. 17-3142
v.                                                   (D.C. No. 5:17-CV-03096-JWL)
                                                                (D. Kan.)
UNITED STATES OF AMERICA,

      Respondent - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

       Pro se federal prisoner Johnny Scott Warren appeals the district court’s denial of

his application for habeas relief under 28 U.S.C. § 2241.1 Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.2

       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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.
       1
        Because Mr. Warren appears pro se, we construe his filings liberally, see Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft arguments or
otherwise advocate for him, see Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
         1. Procedural History

         Mr. Warren is serving a 240-month sentence for federal drug and firearms

convictions. On direct appeal, we affirmed his convictions and upheld the district court’s

denial of his motion to suppress evidence from a search of his home. United States v.

Warren, 566 F.3d 1211 (10th Cir. 2009). He filed a motion to vacate his convictions

under 28 U.S.C. § 2255, which the district court denied. This court denied his request for

a certificate of appealability. United States v. Warren, 393 F. App’x 567 (10th Cir.

2010).

         On four occasions, this court has denied Mr. Warren authorization to bring a

second or successive motion under § 2255 to pursue the argument (or a similar one) that

he tries to make here.3

         Mr. Warren’s § 2241 application in this proceeding claims he is actually innocent

because the drug evidence underlying his convictions was seized during a warrantless

search that violated the Colorado Constitution. The district court denied his application

because Mr. Warren did not show that his claim qualified for consideration under § 2241.




         2
        A federal prisoner is not required to obtain a certificate of appealability to seek
review of a district court’s denial of a habeas application under § 2241. Eldridge v.
Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015).
         3
        See orders entered on (1) January 7, 2011 in 10-1561; (2) January 20, 2015 in 15-
1012; (3) March 13, 2015 in 15-1066; and (4) April 29, 2015 in 15-1145.


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         2. Legal Background

         As the district court correctly explained, a federal prisoner “claiming the right to

be released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States” may file a motion to “vacate, set aside or

correct the sentence.” 28 U.S.C. § 2255(a). This motion must be filed “in the district

court where sentence was imposed.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir.

2010).

         A § 2255 motion is ordinarily the only means to challenge the validity of a federal

conviction following the conclusion of direct appeal. Brace v. United States, 634 F.3d

1167, 1169 (10th Cir. 2011). But “in rare instances,” Sines, 609 F.3d at 1073, a prisoner

may attack his underlying conviction by bringing a § 2241 habeas corpus application

under the “savings clause” in § 2255(e). Brace, 634 F.3d at 1169. That clause provides:

         An application for a writ of habeas corpus [(§ 2241)] in behalf of a prisoner
         who is authorized to apply for relief by motion pursuant to this section
         [(§ 2255)], shall not be entertained if it appears that the applicant has failed
         to apply for relief, by motion, to the court which sentenced him, or that
         such court has denied him relief, unless it also appears that the remedy by
         motion [(§ 2255)] is inadequate or ineffective to test the legality of his
         detention.

28 U.S.C. § 2255(e).

         Thus, a federal prisoner may file a § 2241 application challenging the validity of

his sentence only if § 2255 is “inadequate or ineffective to test the legality of his

detention.” Abernathy v. Wandes, 713 F.3d 538, 547 (10th Cir. 2013) (quotations




                                                  -3-
omitted).4 The application must be brought “in the district where the prisoner is

confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The prisoner bears the

burden of showing he satisfies § 2255(e). Abernathy, 713 F.3d at 549. Mr. Warren has

not done so.

       3. Analysis

       Mr. Warren’s § 2241 application was properly dismissed for several reasons.

       First, Mr. Warren bases his application on an alleged violation of state law—the

Colorado Constitution. But “federal habeas corpus relief does not lie for errors of state

law.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (quotations omitted). “Federal

habeas review is not available to correct state law evidentiary errors. . . . [An applicant]

is entitled to relief only if an alleged state-law error was so grossly prejudicial that it

fatally infected the trial and denied the fundamental fairness that is the essence of due

process.” Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012) (alterations and

quotations omitted).




       4
         The principal purpose of a § 2241 application is to challenge the execution,
rather than the validity, of a federal prisoner’s sentence. Cleaver v. Maye, 773 F.3d 230,
232 (10th Cir. 2014). If, for instance, a prisoner seeks to challenge certain “matters that
occur at prison, such as deprivation of good-time credits and other prison disciplinary
matters . . . affecting the fact or duration of the [prisoner’s] custody,” that claim must be
raised in a § 2241 application rather than a § 2255 motion. McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997). Mr. Warren’s application does not
implicate this aspect of § 2241.


                                                  -4-
       Mr. Warren does not frame his argument as a state constitutional violation that

amounts to a violation of federal due process, but even if he has done so implicitly, his

application fails for the ensuing reasons.

       Second, when this court affirmed Mr. Warren’s conviction on direct appeal, it not

only held that the warrantless search of his residence did not violate the Fourth

Amendment, it also held that “the search of Mr. Warren’s home complied with Colorado

law.” Warren, 566 F.3d at 1218. This shows that Mr. Warren’s § 2241 issue—which

challenges the search under the Colorado Constitution—was either raised or could have

been raised on direct appeal.

       In either event, he was procedurally barred from raising it in a § 2255 motion.

“Absent an intervening change in the law of a circuit, issues disposed of on direct appeal

generally will not be considered on a collateral attack by a motion pursuant to § 2255.”

United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). “When a defendant fails

to raise an issue on direct appeal, he is barred from raising the issue in a § 2255

proceeding, unless he establishes either cause excusing the procedural default and

prejudice resulting from the error or a fundamental miscarriage of justice if the claim is

not considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).5



       5
         See United States v. Warner, 23 F.3d 287, 289 (10th Cir. 1994) (“[T]he issues
Defendant raised in his § 2255 motion had either been decided on direct appeal or should
have been raised on direct appeal and were therefore procedurally barred.”). But see
United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc) (holding that
this procedural bar rule does not apply to claims of ineffective assistance of counsel).


                                                -5-
       Mr. Warren is procedurally barred from federal habeas relief because he either

(1) already raised his claim on direct appeal or (2) could have raised it then and has not

established cause or prejudice here. As we said recently, a “procedural bar does not

render § 2255 ‘inadequate or ineffective’ under § 2255(e).” Hale v. Fox, 829 F.3d 1162,

1171 (10th Cir. 2016). And that means Mr. Warren cannot bring this claim in a § 2241

application.

       Third, Mr. Warren cannot overcome the procedural bar, bypass § 2255(e), and

obtain § 2241 review by labeling his claim as one of “actual innocence.” For one thing,

he mischaracterizes his claim. Challenging the search and seizure of the drug evidence,

even if successful, would not show actual innocence—that he did not commit the drug

offense. It would instead show certain evidence should not have been admitted at trial.

As Mr. Warren points out in his brief, Aplt. Br. at 2, “‘actual innocence’ means factual

innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623

(1998).

       Further, a prisoner can establish actual innocence in post-conviction proceedings

only by bringing forward new exculpatory evidence. See McQuiggin v. Perkins, 133 S.

Ct. 1924, 1928 (2013); Schlup v. Delo, 513 U.S. 298, 324 (1995) (stating the prisoner

must “support his allegations of constitutional error with new reliable evidence . . . that

was not presented at trial”). Mr. Warren has presented no new evidence affirmatively

demonstrating he is innocent of the charged crimes. See United States v. Cervini, 379

F.3d 987, 991-92 (10th Cir. 2004) (citing Schlup, 513 U.S. at 328); Brian R. Means,

Federal Habeas Manual § 9B:80 (May 2017 update).

                                                -6-
      Even if the actual innocence gateway were a valid basis for bypassing § 2255(e),

therefore, it would not be available to Mr. Warren because he fails to present new

evidence showing he did not commit the drug offense. In short, he does not make a post-

conviction actual innocence claim.

      4. Conclusion

      We affirm the district court’s judgment dismissing Mr. Warren’s § 2241 claim.




                                             ENTERED FOR THE COURT,



                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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