FILED

United States Court of Appeals

Tenth Circuit

March 1, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JAMES RICCARDI,

Movant.

No. 09-3355

(D.C. No. 2:02-CR-20060-JWL)

(D. Kan.)

ORDER

Before TACHA, BRISCOE, and HOLMES, Circuit Judges.

James Riccardi, a federal prisoner appearing pro se, has filed a motion for

remand challenging the transfer to this court of a post-conviction motion he filed

in the district court. Alternatively, he seeks authorization to file a second or

successive 28 U.S.C. § 2255 motion. We conclude that the district court correctly

ruled his motion constituted an unauthorized second or successive § 2255 motion,

and we deny the motion for remand, including its alternative request for

authorization.

Procedural Background. In 2003, Riccardi was convicted by a jury of two

counts of possession of child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B), and two counts of use of an instrumentality of interstate

commerce to entice a minor to engage in a prohibited sex act, in violation of

18 U.S.C. § 2422(b). He was sentenced to 262 months’ imprisonment. His

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convictions and sentence were affirmed on direct appeal. United States v.

Riccardi, 405 F.3d 852, 876 (10th Cir. 2005). In 2006, he filed a § 2255 motion. 

The district court denied his motion, and this court affirmed that denial. 

United States v. Riccardi, 314 F. App’x 99, 101 (10th Cir. 2008), cert. denied,

129 S. Ct. 2072 (2009). 

Before a federal prisoner may file a second or successive § 2255 motion, he

must first obtain an order from the appropriate circuit court authorizing the

district court to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). 

In 2009, Riccardi filed a motion in district court for post-conviction relief. 

Because the motion challenged the legality of Riccardi’s conviction, the district

court construed it as an unauthorized second or successive § 2255 motion. It

transferred the motion to this court to enable Riccardi to seek the required

authorization. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (permitting

district courts to either dismiss an unauthorized second or successive § 2255

motion for lack of jurisdiction or transfer it to the circuit court for authorization).

Analysis. Riccardi seeks to present a claim based on a new decision,

United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), issued a year after he

filed his initial § 2255 motion. Schaefer held that reliance on defendant’s use of

the internet was insufficient evidence to establish the requisite interstate nexus to

convict a person under the then-applicable version of 18 U.S.C. § 2252(a)(2)

and (a)(4)(B). Id. at 1201. Based on Schaefer, Riccardi seeks to present a claim

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that there was insufficient evidence to support his 18 U.S.C. § 2252(a)(4)(B) child

pornography indictment and conviction.

In his motion for remand before this court, Riccardi argues the district

court should not have treated his post-conviction motion raising his Schaefer

claim as an unauthorized § 2255 motion, but rather as an initial 28 U.S.C. § 2241

writ of habeas corpus properly filed in the district court. He contends he is

permitted to file a § 2241 petition pursuant to the “savings clause” set out in

28 U.S.C. § 2255(e). He asks that the purported § 2241 motion be remanded to

the district court for resolution in the first instance. Alternatively, he seeks

authorization from this court to file a second or successive § 2255 motion raising

his Schaefer claim.

A. Authorization to file Second or Successive § 2255 Motion.

A motion filed pursuant to § 2255 is the exclusive remedy for testing the

validity of a federal judgment and sentence, and supplants a § 2241 remedy

unless, under the savings clause of § 2255(e), the § 2255 remedy is shown to be

“inadequate or ineffective.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.

1999). Section 2241 “is not an additional, alternative, or supplemental remedy”

to § 2255. Id. (internal quotation omitted). We first address whether Riccardi is

entitled to authorization to present his Schaefer claim in a second or successive

§ 2255 motion. 

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This court may authorize a second or successive § 2255 motion only where

the movant makes a prima facie showing that his claim relies on (1) “newly

discovered evidence that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense” or

(2) “a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.” 28 U.S.C.

§ 2255(h). 

Riccardi does not contend there is any new evidence, and the Schaefer

decision does not satisfy the new-law requirements of § 2255(h)(2). Schaefer did

not involve a constitutional law issue, nor has the Supreme Court declared that its

holding is retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S.

656, 663 (2001) (stating that a “new rule becomes retroactive, not by the

decisions of the lower court or by the combined action of the Supreme Court and

the lower courts, but simply by the action of the Supreme Court”). Thus, Riccardi

has not made a prima facie case that he is entitled to authorization to file a second

or successive § 2255 motion, as required by § 2255(h).

B. Savings Clause.

Section 2255(e)’s savings clause provides that:

An application for a writ of habeas corpus in behalf of a prisoner

who is authorized to apply for relief by motion pursuant to this

section, shall not be entertained if it appears that the applicant has

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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 is inadequate or ineffective to test the

legality of his detention.

Id. (emphasis added). In other words, a court may consider a § 2241 petition

challenging a prisoner’s federal custody only if the petitioner establishes that the

remedy provided under § 2255 is “inadequate or ineffective to test the legality of

his detention.” Id. 

The petitioner bears the burden of demonstrating that § 2255 is an

inadequate or ineffective remedy. Reyes-Requena v. United States, 243 F.3d 893,

901 (5th Cir. 2001); Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998). The

§ 2255 remedy will be found to be inadequate or ineffective only in “extremely

limited circumstances.” Caravalho, 177 F.3d at 1178. 

Riccardi argues in his motion for remand that the government lacked the

interstate jurisdictional nexus to convict him based on the Schaefer decision,

which was unforeseen at the time of his direct appeal and first § 2255 motion. 

He appears to be implicitly arguing that if he cannot present this claim in a

second § 2255 motion, then that remedy is inadequate or ineffective. To the

contrary, we have held that the fact that a petitioner is barred from filing a second

or successive § 2255 motion does not demonstrate that the remedy provided in

§ 2255 is inadequate or ineffective. Id. 

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To date, this court has not adopted a standard or set of criteria to determine

when the § 2255 remedy is inadequate or ineffective. For guidance, we turn to

the Fifth Circuit, which, after surveying the circuits, held that the stringent

“inadequate or ineffective” standard of § 2255(e) applies only to a proposed claim

“(i) that is based on a retroactively applicable Supreme Court decision which

establishes that the petitioner may have been convicted of a nonexistent offense

and (ii) that was foreclosed by circuit law at the time when the claim should have

been raised in the petitioner’s trial, appeal, or first § 2255 motion.” 

Reyes-Requena, 243 F.3d at 901, 904. 

Under this standard, Riccardi’s claim fails to demonstrate that the § 2255

remedy is inadequate or ineffective under § 2255(e)’s savings clause. Schaefer

was not a Supreme Court decision, nor does it establish that Riccardi may have

been convicted of a nonexistent offense. Schaefer addressed only the type of

evidence needed to establish the requisite interstate nexus. It is a unique case that

“is limited to its facts– the government’s say so was not enough to prove that the

Internet operates in interstate commerce, no matter how obvious.” United States

v. Vigil, 523 F.3d 1258, 1266 (10th Cir.), cert. denied, 129 S. Ct. 281 (2008). 

In Riccardi’s case, we have previously considered and rejected his argument that

his conduct was not interstate in nature, holding that, “[a]s shown by the evidence

at trial, Mr. Riccardi’s activities have a direct and significant interstate

component: namely, he transported his photographic subjects, teenage boys,

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across state [lines] for the purpose of producing pornography and engaging in

other illicit sexual activities.” Riccardi, 405 F.3d at 868.

In summary, because Riccardi’s post-conviction motion attacked the

legality of his conviction, § 2255 is his exclusive remedy. He has not

demonstrated that he is entitled to authorization to file a second or successive

§ 2255 motion. Nor has he demonstrated that his § 2255 remedy is “inadequate or

ineffective” under § 2255(e), so as to justify treating his motion as a § 2241

petition and remanding that matter to the district court. Accordingly, we DENY

the motion for remand. Our denial of authorization is not appealable and

“shall not be the subject of a petition for rehearing or for a writ of certiorari.” 

28 U.S.C. § 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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