Georgacarakos v. Daniels , 464 F. App'x 736 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
February 27, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
PETER GEORGACARAKOS,
Petitioner–Appellant, No. 11-1496
v. (D.C. No. 11-CV-02263-LTB)
CHARLES DANIELS, (D. Colorado)
Respondent–Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
After examining Plaintiff’s brief and the 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).
This case is therefore ordered submitted without oral argument.
Petitioner, a federal prisoner proceeding pro se, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 habeas petition. Petitioner was convicted of
second degree murder in the United States District Court for the Middle District
*
This order is not binding precedent except under the doctrines of law of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.
of Pennsylvania. The Third Circuit affirmed the conviction on direct appeal. See
United States v. Georgacarakos, 138 F. App’x 407 (3d Cir. 2005). After a
remand for resentencing, the Third Circuit affirmed Petitioner’s sentence of 360
months in prison. See United States v. Georgacarakos, 229 F. App’x 189 (3d Cir.
2007). Petitioner filed a 28 U.S.C. § 2255 habeas petition to vacate his sentence
in the Pennsylvania court, and the district court denied his petition and request for
a certificate of appealability. The Third Circuit also denied his request for a
certificate of appealability. Petitioner then filed a Rule 60(b) motion attempting
to vacate the prior §2255 ruling in part because the statute of limitations for
second degree murder had expired before the indictment issued. The district
court treated this motion as a second or successive § 2255 petition and denied the
petition because Petitioner had failed to raise the issues on direct appeal. The
district court further held that Petitioner had waived his statute of limitations
argument when both Petitioner and the government sought the lesser included
offense of second degree murder instead of the original first degree murder
charge.
In this habeas petition, Petitioner again raises the argument the statute of
limitations for second degree murder expired before he was indicted. He argues
the Bureau of Prisons lacks authority to hold him in custody. We review de
novo the district court’s denial of § 2241 habeas relief. See Martinez v. Flowers,
164 F.3d 1257, 1258 (10th Cir. 1998). A § 2241 petition is proper to challenge
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the execution of a sentence. See Licon v. Ledezma, 638 F.3d 1303, 1311 (10th
Cir. 2011). A § 2241 petition is not the appropriate vehicle to challenge the
legality of a conviction or sentence. Id. In this case, the magistrate judge issued
an order directing Petitioner to show cause why the court should not dismiss his
petition because he has an adequate and effective remedy available pursuant to §
2255 in the sentencing court. Petitioner responded that “[i]f the courts lacked
jurisdiction to convict and sentence Petitioner, then the B.O.P. lacks jurisdiction
to hold him.” (R. at 28 (capitalization omitted).)
Like the district court, we are not persuaded Petitioner’s claim was an
attack on the execution of his sentence rather than the legality of his conviction.
Further, the fact Petitioner was denied § 2255 relief in the sentencing court does
not demonstrate this remedy is inadequate or ineffective. See Williams v. United
States, 323 F.2d 672, 673 (10th Cir. 1963). Therefore, for substantially the same
reasons set forth in the district court’s order, we AFFIRM the dismissal of this
action. Petitioner’s motion to proceed in forma pauperis on appeal is DENIED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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