McBee v. Lewis , 166 F. App'x 360 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 6, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
GREGORY McBEE,
Petitioner - Appellant,
No. 05-5058
v. (D.C. No. 05-CV-184-HDC)
(N. D. Oklahoma)
STEPHEN C. LEWIS, U. S.
ATTORNEY; CHARLES DANIELS,
WARDEN,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
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.
Gregory McBee, proceeding pro se, appeals an order entered by the United
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
States District Court for the Northern District of Oklahoma dismissing his petition
under 28 U.S.C. § 2241 for writ of habeas corpus.
In 1998, Petitioner McBee pleaded guilty in the district court for the
Northern District of Oklahoma to two counts of knowingly using or carrying a
firearm, and aiding and abetting the use or carrying of a firearm, during a crime
of violence, in violation of 18 U.S.C. § 924(c) and § 2. See United States v.
McBee, No. 97-CR-178-0003 (N.D. Okla. May 27, 1998). He did not appeal.
In 1999, he filed a 28 U.S.C. § 2255 motion under the Antiterrorism and
Effective Death Penalty Act (AEDPA) claiming ineffective assistance of trial
counsel. The district court denied the motion. See McBee v. United States, No.
99-CV-388 (N.D. Okla. July 26, 1999). He did not appeal. In May 2004, he filed
a motion to dismiss the indictment, arguing that the indictment failed to include
the essential elements of the offenses. The district court denied the motion. On
appeal, he voluntarily dismissed his case. See United States v. McBee, No. 04-
5116 (10th Cir. Aug. 27, 2004) (unpublished order). In July 2004, he filed a
second § 2255 motion raising a sentencing claim under Blakely v. Washington,
542 U.S. 296 (2004) . The district court dismissed the motion for lack of
jurisdiction. See McBee v. United States, No. 04-CV-574 (N.D. Okla. Aug. 16,
2004). He did not appeal. In February 2005, he filed a motion for authorization
in this court seeking to raise sentencing claims under United States v. Booker, 543
2
U.S. 220 (2005), and Blakely. The motion was denied. See McBee v. United
States, No. 05-5011 (10th Cir. Mar. 7, 2005) (unpublished order).
In April 2005, Gregory McBee, who is incarcerated at the Federal
Correctional Institution in Sheridan, Oregon, filed a § 2241 petition in the
Northern District of Oklahoma challenging his convictions based on the Supreme
Court decision in Bailey v. United States, 516 U.S. 137 (1995). The district court
dismissed the § 2241, concluding that it lacked jurisdiction because Petitioner was
not incarcerated in Oklahoma but rather Oregon. The court further concluded that
Petitioner’s exclusive remedy for raising a Bailey claim was under § 2255 and
not under § 2241, and that he could file a § 2255 motion in the Northern District
of Oklahoma if the Tenth Circuit first granted him authorization under the
AEDPA to do so. This appeal followed.
We review de novo a district court’s dismissal of a petition under § 2241
for writ of habeas corpus. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996).
On appeal, Petitioner contends that his convictions under § 924(c) are
invalid based on the decision in Bailey, and that he is actually innocent of these
offenses because he did not use, carry, facilitate, or encourage the use of a
firearm but rather only participated in the armed robberies.
Upon review of the record and appellate brief, the court concludes that the
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district court was correct in dismissing the § 2241 petition. Judicial review of a
§ 2241 petition must be sought in the district where a prisoner is confined at the
time of filing the petition rather than in the district where a prisoner is convicted
and sentenced. Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000). At the
time of filing his § 2241 petition, Petitioner McBee was incarcerated in Oregon
and not Oklahoma. In cases such as this one where relief is sought in the
sentencing court, the sentencing court lacks jurisdiction to consider claims for
relief under § 2241.
Furthermore, a § 2241 petition and a § 2255 motion have distinct purposes.
A § 2241 petition is not the proper means to raise a Bailey claim as alleged by
Petitioner. A motion under § 2255 in the district court for the Northern District
of Oklahoma is the exclusive remedy for Petitioner to challenge his § 924(c)
convictions unless there is a showing that the remedy is inadequate or ineffective.
See Haugh, 210 F.3d at 1149. Courts have stressed that the remedy under § 2255
is inadequate or ineffective only in “extremely limited circumstances.”
Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). The fact that a
petitioner is precluded from filing another § 2255 motion fails to establish that
the remedy under § 2255 is inadequate. See id. at 1179. And although second or
successive applications are restricted under the AEDPA, they are not prohibited.
See 28 U.S.C. § 2244(b)(2), § 2255; Felker v. Turpin, 518 U.S. 651, 664 (1996).
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As to Petitioner’s "actual innocence" claim, his reliance on Bailey is
misplaced. Petitioner contends he could not be found guilty of using or carrying a
firearm in connection with a crime of violence under § 924(c) because he was not
the person who "actively employed" the gun used during the robberies. However,
Petitioner was convicted of “aiding and abetting,” which means he can be
punished even if he did not touch the gun. See 18 U.S.C. § 2; Haugh, 210 F.3d at
1151. Also, Petitioner was convicted three years after Bailey was decided by the
Supreme Court; therefore, Bailey was decided in time for him to raise it during
his criminal proceedings and in his first § 2255 motion.
Because Petitioner McBee has an adequate and effective remedy under
§ 2255, his § 2241 petition is inappropriate.
Accordingly, the district court’s order is AFFIRMED. Petitioner’s motion
for leave to proceed in forma pauperis is GRANTED. The mandate shall issue
forthwith.
Entered for the Court
Per Curiam