Verdell Mays v. C. Carter

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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VERDELL MAYS,
Petitioner - Appellant,
v.
C. CARTER,
Respondent - Appellee.
No. 22-1089
(D.C. No. 1:21-CV-02218-NYW)
(D. Colo.)
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ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Verdell Mays, a federal prisoner proceeding pro se,1 appeals an order
dismissing his 28 U.S.C. § 2241 petition as successive. For the reasons below, we
affirm.
Mays’s § 2241 petition stems from his convictions for two federal drug
offenses. As relevant here, the sentencing court initially imposed a 225-month prison
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
1 “Because [Carter] is pro se, we liberally construe his filings, but we will not
act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
FILED
United States Court of Appeals
Tenth Circuit
October 11, 2022
Christopher M. Wolpert
Clerk of Court
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term for those crimes, but Mays later received a reduction to 180 months based on a
decrease in the applicable offense level under the United States Sentencing
Guidelines (U.S.S.G.). Six years later, in the § 2241 petition underlying this appeal,
Mays challenged the execution of his sentence by the Bureau of Prisons (BOP).
Specifically, he sought an order directing the BOP to “reduce his sentence by 22
months” to account for time he spent serving a sentence for related state crimes
before his federal sentencing hearing. R. 10. The district court ultimately dismissed
Mays’s petition as successive, and therefore barred by 28 U.S.C. § 2244(a), because
it raised the same claim Mays had unsuccessfully raised in a § 2241 petition filed in a
different federal district court three years earlier.
Mays now appeals, arguing that the district court improperly dismissed his
§ 2241 petition. As noted above, the district court based its decision on § 2244(a).
That statute that allows courts to decline to consider successive petitions—those that
“present[] a claim that was previously raised and adjudicated in an earlier habeas
proceeding”—unless doing so “would serve the ends of justice.” Stanko v. Davis, 617
F.3d 1262, 1269 (10th Cir. 2010). We review the district court’s decision to dismiss
Mays’s petition as successive for abuse of discretion. Vance v. U.S. Parole Comm’n,
No. 94-3043, 1994 WL 325399, at *1 (10th Cir. July 11, 1994).
Here, at the outset, Mays does not dispute that his petition is successive. On
the contrary, he acknowledged in the district court that he simply “ref[il]ed” his
earlier § 2241 petition to reassert the same argument about the BOP not crediting him
for 22 months of presentencing jail time. R. 22. On appeal, Mays likewise recognizes
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that “his second [§ 2241] motion” merely reasserts the 22-month-reduction claim
from his “first motion.” Aplt. Br. 2. And as the district court observed, Mays’s prior
petition was denied on the merits based on a determination that he “was not entitled
to the habeas relief he requested because the sentencing court had already accounted
for his 22 months of pre[]sentence custody by granting a downward adjustment of his
federal sentence under U.S.S.G. § 5G1.3(b).” R. 32. Since Mays asserted a claim that
was both raised and rejected in prior habeas proceedings, the district court properly
treated his second § 2241 petition as successive. See Stanko, 617 F.3d at 1269.
The only issue, then, is whether considering Mays’s successive petition
“would serve the ends of justice.” Id. To establish that it would, Mays must make a
“colorable showing of factual innocence.” McCleskey v. Zant, 499 U.S. 467, 495
(1991) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion)).
But he makes no attempt to do so. Instead, he urges us to permit reconsideration of
his successive claim because (1) COVID-19 lockdowns at his prison prevented him
from timely responding to a magistrate judge’s recommendation to deny his prior
petition; and (2) his BOP records contain “inaccura[cies] and/or false information.”
Aplt. Br. 3. But because those arguments have nothing to do with whether Mays is
innocent of his underlying drug offenses, they fall outside the “limited scope of the
ends-of-justice exception.” Hill v. Daniels, 504 F. App’x 683, 688 (10th Cir. 2012).
In sum, Mays’s § 2241 petition is successive, and Mays has not shown that the
ends of justice nevertheless require its consideration. The district court therefore did
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not abuse its discretion in dismissing his petition, and we affirm the dismissal.2 As a
final matter, we deny Mays’s motion to proceed in forma pauperis on appeal because
he has not asserted “a reasoned, nonfrivolous argument” in support of his position.
Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
Entered for the Court
Nancy L. Moritz
Circuit Judge
2 Because we conclude that the district court properly dismissed Mays’s
petition as successive under § 2244(a), we need not consider the government’s
assertion that Mays “waived review of the district court’s order” through inadequate
briefing. Aplee. Br. 7; see also United States v. Wells, 873 F.3d 1241, 1250 (10th Cir.
2017) (declining to address waiver because appellant’s argument “fail[ed] on the
merits”).
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