Lehi v. Zuercher ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 3, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ABE LEHI,
Petitioner-Appellant, No. 07-1131
v. (Case No. 07-cv-180-ZLW )
J. C. ZUERCHER, W arden, (D . Colo.)
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
This pro se 28 U.S.C. § 2241 federal prisoner appeal is the fourth in a
series of pleadings brought by Petitioner to challenge his conviction and sentence.
After a careful review of Petitioner’s brief, the record on appeal, and the district
court’s disposition, we affirm.
Although Petitioner’s pleading purported to seek relief under § 2241, the
district court correctly noted that, “[d]espite his protests to the contrary, M r. Lehi
*
This order and judgment is not binding precedent, except under the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.
After examining Petitioner’s brief and the 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.
is challenging the validity of his conviction and sentence.” (Order and Judgment
of Dismissal at 2.) “The exclusive remedy for testing the validity of a judgment
and sentence, unless it is inadequate or ineffective, is that provided for in 28
U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965). 1 The §
2255 remedy will be inadequate or ineffective only in “extremely limited
circumstances.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). The
fact that Petitioner has been denied relief under § 2255 and may be barred from
filing a second or successive § 2255 petition does not demonstrate that the
remedy provided in § 2255 is inadequate or ineffective. Id.; see also Williams v.
United States, 323 F.2d 672, 673 (10th Cir. 1963). Because Petitioner challenges
the validity of his judgment and sentence and has not demonstrated that he lacks
an adequate and effective remedy under § 2255, his § 2241 petition is
inappropriate. Accordingly, we AFFIRM the district court’s dismissal of the
action. Petitioner’s motion for leave to proceed in form a pauperis is GRANTED.
Entered for the Court
M onroe G. M cKay
Circuit Judge
1
Petitioner’s reliance on Boyce v. Ashcroft, 251 F.3d 911, 917-18, vacated
as moot, 268 F.3d 953 (10th Cir. 2001), is misplaced. Boyce dealt only with the
distinction between habeas petitions and Bivens actions, see Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
and did not purport to alter the well-established distinction between § 2241 and §
2255 habeas petitions.
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