                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 14, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT




    JERRY L. ROBINSON,

                Petitioner-Appellant,

    v.                                                  No. 10-6123
                                                 (D.C. No. 5:09-CV-01369-F)
    HECTOR A. LEDEZMA, Warden,                          (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and KELLY, Circuit Judges.


         This case presents unusual and compelling circumstances for federal

post-conviction relief. Petitioner is currently incarcerated for an additional five

years beyond the statutorily authorized term due to an erroneous specification of

his offense in the indictment, plea agreement, and judgment of conviction. The

operative mistake, actively shared in by defense counsel, the prosecution, and the



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
trial judge, is patently evident on the record. The government specifically

charged, petitioner (advised by counsel) pled guilty to, and the district court

formally convicted defendant of violating 21 U.S.C. § 841(b)(1)(C) for possessing

with intent to distribute 1300 grams of marijuana. But possessing with intent to

distribute 1300 grams, or 1.3 kilograms, of marijuana is not a violation of

§ 841(b)(1)(C), it is a violation of § 841(b)(1)(D) (addressing offense involving

less than 50 kilograms of marijuana). And this factually unsupported conviction

demonstrably prejudiced the petitioner: the 120-month sentence he received

would have been permissible for the former violation but plainly exceeds the

five-year maximum authorized for the latter. Petitioner has already served more

than the allowed five years; to keep him confined longer is an injustice.

      Errors cannot always be remedied by legal action, of course. This is

particularly true where early inaction or procedural misstep by the defendant has

left an error in a criminal prosecution unchallenged until well after a conviction

has become final. Congress has erected formidable barriers to relief in this

circumstance: the one-year statute of limitations in § 2255(f); and, where the

defendant has already pursued one (or more) § 2255 motion(s) challenging the

conviction or sentence in question, the rigorous constraints in § 2255(h) on filing

second or successive § 2255 motions. 1 But these procedural barriers do not fully

1
    Relief may also be precluded by non-statutory impediments, such as the
common law procedural bar applicable to claims that could have but were not
                                                                   (continued...)

                                         -2-
extinguish the interests of justice. The limitations period in § 2255(f) is subject

to equitable tolling for various reasons, including the actual innocence of the

defendant. United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008).

More generally, none of the barriers to or constraints on § 2255 motions may be

operative if the § 2255 remedy is properly found “inadequate or ineffective to test

the legality of [the defendant’s] detention,” 28 U.S.C. § 2255(e)—in which case a

petition for a writ of habeas corpus under 28 U.S.C. § 2241 may substitute for the

remedy unavailable under § 2255.

                  I. Post-Conviction Proceeding under Review

      Invoking this last principle, petitioner challenged his invalid conviction and

sentence, imposed in the district court for the District of Kansas, by filing a

habeas petition under § 2241 in the district court for the Western District of

Oklahoma, where he is currently confined. See generally Caravalho v. Pugh,

177 F.3d 1177, 1178 (10th Cir. 1999) (noting that while § 2255 motions must be

filed in the district where sentence was imposed, § 2241 petitions must be filed in

the district where the petitioner is confined). Aware that a § 2255 motion

challenging his conviction and sentence, imposed in 2005, would be subject to the

one-year time bar in § 2255(f), petitioner argued to the district court that his

1
 (...continued)
raised by direct appeal, see, e.g., United States v. Wiseman, 297 F.3d 975, 979
(10th Cir. 2002) (discussing United States v. Frady, 456 U.S. 152, 167-68 (1982),
and any waiver of review of sentencing objections in a plea agreement, see, e.g.,
United States v. Cockerham, 237 F.3d 1179, 1182-83 (10th Cir. 2001).

                                         -3-
factual innocence of the offense of conviction, coupled with the unavailability of

relief due to the time bar, provided sufficient grounds for deeming his § 2255

remedy inadequate or ineffective within the meaning of § 2255(e), thereby

justifying his resort to an alternative remedy under § 2241. 2

      The district court rejected this argument. Assuming that a § 2255 motion

was presently unavailable to petitioner, the court held such a motion nevertheless

was his exclusive remedy, and dismissed the § 2241 petition without prejudice for

lack of jurisdiction. Petitioner now appeals. We affirm the dismissal of the

§ 2241 petition, but on a slightly different analysis that has significant practical

consequences for petitioner: we hold that relief under § 2255 is still potentially

available and should be pursued promptly in the District of Kansas. As explained

below, petitioner has a colorable basis for equitably tolling the limitations period

2
       We note that the constraints on second-or-successive § 2255 motions are
not at issue here. The defendant has not previously challenged his conviction or
sentence under § 2255, and thus could file such a motion in the District of Kansas
without circuit authorization under § 2255(h) and § 2244(b)(3). He did file two
habeas petitions (one initially mischaracterized as a § 2255 motion), but these
were properly treated as § 2241 challenges to the execution of sentence (involving
claims regarding anti-shuttling provisions of the Interstate Agreement on
Detainers Act and credit for time served). Moreover, they were ultimately
dismissed without prejudice on grounds–mootness and lack of exhaustion–that
would not trigger second-or-successive constraints in any event. This circuit “has
generally held that any habeas petition that does not result in an adjudication on
the merits of the habeas claims, whether that adjudication be on procedural or
substantive grounds, will not count as a first petition for purposes of determining
whether later habeas petitions are second or successive.” Douglas v. Workman,
560 F.3d 1156, 1188-89 & n.18 (10th Cir. 2009) (collecting Supreme Court and
circuit cases holding, for example, that non-prejudicial dismissals on ripeness and
exhaustion grounds do not trigger second-or-successive constraints).

                                          -4-
in § 2255(f). He must pursue that possibility in the Kansas district court through

a proper § 2255 motion before resort to a § 2241 petition as a substitute for an

allegedly “inadequate or ineffective” § 2255 motion is considered. In addition, in

light of the non-jurisdictional nature of the time bar, see United States v. Kelly,

235 F.3d 1238, 1243 (10th Cir. 2000), the government could expressly waive it in

the interest of justice to enable a prompt and procedurally appropriate remedy for

the patently prejudicial error tainting petitioner’s conviction and resultant

sentence, see generally Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002)

(collecting cases recognizing that time-bar in § 2255 and habeas proceedings may

be waived by government). Under the unique circumstances here, we encourage

the government to fully consider this expeditious course.

                      II. Underlying Criminal Prosecution

      The indictment for the count of conviction in this case was invalid on its

face. Petitioner was charged with “knowingly and intentionally possess[ing] with

intent to distribute approximately 1300 grams of a mixture or substance

containing a detectable quantity of marijuana . . . in violation of Title 21, United

States Code, Section 841(a)(1) and 841(b)(1)(C).” Count 3 of Indictment, United

States v. Robinson, D. Kan. No. 04cr40107 (filed Sept. 8, 2004). The judgment of

conviction, entered on petitioner’s guilty plea, followed suit, specifying the

offense of conviction as “21 U.S.C. § 841(a)(1) and (b)(1)(C)” for “Possession

with Intent to Distribute Approximately 1,300 grams of Marijuana.” Judgment

                                          -5-
entered June 28, 2005. As noted above, the specified drug quantity would support

only a violation of § 841(b)(1)(D), not a violation of § 841(b)(1)(C). This error is

not a marginal matter; it goes to the very validity of the charged offense: when,

as here, “the government elects to charge a defendant with possessing with intent

to distribute a certain quantity of drugs, that quantity becomes an element of the

charged offense.” United States v. Montgomery, 468 F.3d 715, 719 (10th Cir.

2006). In essence, petitioner was charged with and convicted of a greater offense

based on stipulated facts that established only a lesser included offense. It bears

emphasis that while the prejudicial consequences were felt at sentencing, the error

here related directly to the validity of the underlying conviction itself.3

      Evidently, no one realized the error at the time. The prosecuting attorney,

defense counsel, and the court all overtly proceeded on the basis that petitioner’s

charged conduct violated § 841(b)(1)(C). Every person of legal authority that

admonished or advised petitioner in his case affirmed that his conviction and

sentence under § 841(b)(1)(C) was proper. Indeed, defense counsel negotiated a

3
       Petitioner’s circumstance must be distinguished from that of a defendant
who was properly convicted of a § 841 offense but was just sentenced improperly
for that conviction (typically, based on judicial findings in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000)). In the latter case, the defendant merely has
a sentencing objection and cannot claim he was actually innocent of the offense
of conviction. See, e.g., Davis v. Ledezma, No. 10-6106, 2010 WL 3294216,
at *2 (10th Cir. Aug. 23, 2010) (unpub.); United States v. Osborne, 12 F. App’x
815, 821 (10th Cir. 2001) see also United States v. Glover, No. 97-5206, 1998
WL 476779, at *2 (10th Cir. 1998) (unpub.). Here, petitioner was charged with
and convicted of an offense that the charged and admitted facts demonstrate he
did not commit.

                                          -6-
plea agreement that acknowledged sentencing should proceed in accordance with

§ 841(b)(1)(C), and even included a waiver of both appellate and collateral review

of the sentence to be imposed thereunder. 4 Given the consistent representations

of every legal professional involved, petitioner had no reason to question the

legality of his conviction and sentence or the validity of his waiver of review, and

he did not appeal following imposition of his 120-month sentence. 5

                III. Analysis of Justification for § 2241 Petition

      At some point, however, petitioner became aware of the error that had been

obscured by the unanimous misunderstanding of counsel and the court during his

criminal prosecution. He obtained post-conviction counsel who filed the instant

4
       This waiver is immaterial here. As we have repeatedly noted, petitioner’s
invalid conviction under § 841(b)(1)(C) resulted in a sentence in excess of the
statutorily authorized maximum for the lesser § 841(b)(1)(D) offense established
by the facts alleged in the indictment and admitted in his plea. Such an illegal
sentence is a categorical exception to the enforcement of a waiver of review,
either on appeal or post-conviction, included in a plea agreement. See United
States v. Hahn, 359 F.3d 1315, 1324-27 (10th Cir. 2004) (en banc); Cockerham,
237 F.3d at 1182-83.
5
       As noted earlier, the failure to take an appeal can raise a procedural bar to
review on post-conviction. See Wiseman, 297 F.3d at 979. Such a bar does not
affect our analysis here for two reasons. First, it is a merits issue properly
reserved for consideration by the district court in the event petitioner properly
seeks review by § 2255 motion in the District of Kansas. Second, as a facial
matter, we note that this case presents circumstances implicating two distinct
exceptions to the procedural bar: (1) petitioner claims he is factually innocent of
the offense of conviction, which would excuse the procedural bar, id. at 979
(citing Bousley v. United States, 523 U.S. 614, 623-24 (1998)); (2) ineffective
assistance of counsel also excuses the procedural bar, id. (citing Coleman v.
Thompson, 501 U.S. 722, 753-54 (1991)), and the suggestion of such a claim by
the facts of this case could hardly be denied.

                                         -7-
§ 2241 petition, rather than a motion under § 2255, on his behalf. Counsel

asserted two justifications for pursuing this course, neither of which we find

persuasive.

      First, counsel noted that petitioner had already begun serving the illegal

portion of his sentence, and argued that this circumstance reoriented the focus of

his challenge from the validity of petitioner’s conviction and sentence to the

present execution of his sentence, properly pursued under § 2241. This argument

is faulty in both content and consequences. It rests on a non sequiter: that

petitioner is serving the part of his term he claims to be illegal due to the

invalidity of his underlying conviction or sentence does not in any way alter the

fact that he is challenging the validity of his underlying conviction or sentence.

And it implies patently untenable conclusions: every challenge to the validity of

a conviction (which renders the resultant confinement illegal from day one) would

in reality be a challenge to the execution of sentence, for which § 2241 must be

used; and every challenge to the validity of a sentence would at some point (as

soon as the defendant’s confinement exceeded the point at which he alleged it

became illegal) transform into a challenge to the execution of sentence, for which

§ 2241 must be used. Under this view, § 2241, rather than § 2255, would be the

primary vehicle for challenging federal convictions and sentences. The district

court quite rightfully dismissed this position out of hand.




                                          -8-
      Counsel’s second justification for resorting to § 2241 at least invokes a

recognized principle, though under the present circumstances we agree with the

district court that the principle does not apply here. Counsel argues that we

should deem § 2255 to be an inadequate or ineffective remedy for petitioner in

light of the combination of two considerations: first, any § 2255 motion would be

subject to the one-year time bar in § 2255(f); and, second, petitioner’s actual

innocence of the offense of conviction demands some means of remedy in the

interest of justice. This argument draws us into a somewhat obscure area of

jurisprudence–and one all the more uncertain in this circuit, which has yet to

definitively adopt, let alone fully work out the content of, an actual-innocence

exception to the exclusivity of § 2255. Whatever the finer contours of such an

exception might be, however, one thing is certainly clear: a § 2241 petition may

not be used to challenge a federal conviction when potential relief by way of a

§ 2255 motion remains currently available. And petitioner failed to establish this

most obvious threshold point here.

      As we have already touched on, the time bar in § 2255(f) is subject to

tolling on the basis of a developing set of equitable considerations. And this

court has recognized actual innocence as one of them. Gabaldon, 522 F.3d at

1124; see also Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (noting

same point in connection with time bar in § 2244(d)(1)). Diligence in pursuing a

§ 2255 motion is also a consideration, Gabaldon, 522 F.3d at 1124, though its

                                         -9-
role in actual-innocence cases has not been definitively settled by this court. We

have yet to decide, for instance, whether a defendant who has demonstrated actual

innocence must nevertheless serve the rest of his sentence–possibly the rest of his

life–in prison for a crime he did not commit simply because he cannot persuade a

court that he acted with sufficient diligence in raising the issue. Fortunately, we

need not wade deeply into this legal quicksand here. The circumstances

surrounding petitioner’s prosecution, plea, and sentencing proceedings, described

earlier, suggest a facially plausible excuse for his failure to promptly recognize

and seek to remedy the claim he has now raised. In accepting the factual validity

of his conviction, and the resultant legality of his ten-year sentence, under

§ 841(b)(1)(C), petitioner followed legal representations made throughout the

proceedings by the government, his own counsel, and the trial judge; indeed, the

unanimous affirmation of legal regularity here culminated in a defense waiver of

appellate and collateral review should sentencing be carried out in accordance

with his conviction under § 841(b)(1)(C).

      These circumstances raise at least a colorable basis to argue for the exercise

of judicial discretion in tolling the limitations period in § 2255(f) to permit the

presentation of a claim of actual innocence in a proper § 2255 motion. And that

is enough to render petitioner’s direct recourse to § 2241 in this proceeding

plainly premature and inappropriate.




                                          -10-
      While we recognize the substance of the equitable-tolling question insofar

as it relates to the disposition of the § 2241 matter properly before us on appeal,

we do not reach and resolve that question as it relates to the merits of the § 2255

motion petitioner has thus far neglected to pursue. That is a matter beyond the

scope of this appeal, as well as a matter properly reserved in the first instance to

the discretionary judgment of the district court should petitioner properly pursue

his § 2255 remedy in the District of Kansas, cf. Gabaldon , 522 F.3d at 1127

(remanding for district court to decide in the first instance issues regarding

equitable tolling that had not been considered prior to sua sponte dismissal of

§ 2255 motion). This course is particularly appropriate here, where the parties

had no occasion to address the question in this § 2241 proceeding (indeed, the

government has not submitted any briefing, on appeal or in the district court, in

this case) . Cf. id. (noting, in support of remand for resolution of equitable tolling

issues, that the government had not yet had an opportunity to address the issues in

district court). Again, however, we emphasize that the government could obviate

a collateral contest over the time bar, and enable prompt remedial action for a

patent error that it played a significant role in creating, by waiving its limitations

defense in the event petitioner pursues relief under § 2255.

                                   IV. Conclusion

      For reasons stated above, we hold that petitioner’s attempt to challenge his

conviction and sentence under § 2241 at this juncture was improper. Given the

                                          -11-
substantive nature of his claim and the facially plausible excuse for his delay in

recognizing and asserting it, petitioner has a colorable argument for equitably

tolling the time bar in § 2255(f), and hence cannot demonstrate that the remedy

provided by § 2255 is even currently unavailable to him. Unless and until that

most basic condition is met, it would be futile to consider the propriety of a

§ 2241 petition under an actual-innocence/inadequate-or-ineffective-remedy

rationale. On this understanding, we conclude that the instant § 2241 petition was

properly dismissed without prejudice.

      The judgment of the district court is AFFIRMED. Appellant’s motion to

set this case for oral argument is DENIED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                         -12-
