Rich v. Peterson ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
December 13, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
ROBERT L. RICH,
Petitioner - Appellant,
No. 05-6171
v.
(D.C. No. CIV-05-65-C)
(W.D. Okla.)
T. C. PETERSON, Warden,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, McKAY and HENRY, Circuit Judges.
Appellant Robert L. Rich, a federal inmate appearing pro se, seeks leave to
proceed in forma pauperis in appealing the denial of his 28 U.S.C. § 2241 habeas
petition. Because Mr. Rich has failed to present a “reasoned, nonfrivolous
argument on the law and facts” in support of the issue he raises on appeal,
*
After examining appellant’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) and 10th Cir. R.
34.1(G). The case is therefore ordered 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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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.
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we deny his motion
to proceed in forma pauperis and dismiss this appeal.
I. Background
In 1989, Mr. Rich was convicted in the United States District Court for the
Eastern District of Louisiana of engaging in a continuing criminal enterprise in
violation of 21 U.S.C. § 848. On direct appeal, the United States Court of
Appeals for the Fifth Circuit affirmed his conviction. Mr. Rich unsuccessfully
sought relief under 28 U.S.C. § 2255, and the Fifth Circuit denied his requests to
file successive § 2255 motions. See United States v. Rich, 141 F.3d 550, 550–51
(5th Cir. 1998).
Mr. Rich then filed a petition pursuant to 28 U.S.C. § 2241 in the Western
District of Oklahoma, where he is incarcerated. The petition alleges that during
his trial the prosecution failed to disclose exculpatory evidence and knowingly
used perjured testimony, and that there was a variance between the indictment and
the facts on which the jury based its verdict. The district court accepted a
magistrate judge’s determination that relief was unavailable under § 2241 and
recommendation that the action be dismissed.
On appeal, Mr. Rich contends that the district court’s decision both failed
to enforce the plain language of §§ 2255 and 2241 and applied those sections so
as to “work[] an unconstitutional suspension of the writ of habeas corpus.” He
-2-
asks that we vacate the decision of the district court and remand for a hearing on
the merits.
II. Discussion
Reviewing de novo the district court’s denial of Mr. Rich’s habeas petition,
we agree that he is not entitled to relief under § 2241. Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996). Generally, “[a] petition under 28 U.S.C. § 2241attacks the execution of a sentence rather than its validity,” whereas “[a] 28
U.S.C. § 2255 petition attacks the legality of detention.” Id. Here, Mr. Rich’s
arguments are challenges to the validity of his sentence, which he may only make
under § 2241 if he meets his burden of showing that § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255; see Bradshaw,
86 F.3d at 167.
Mr. Rich fails to meet his burden. His only claim is that § 2255 is
inadequate because he cannot file a § 2255 motion without prior authorization
from the Fifth Circuit, which has “already denied Petitioner the authorization to
file such a motion.” However, we have clearly held that a habeas petitioner’s
inability to obtain leave to file a second or successive § 2255 petition does not
make that remedy inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177,
1179 (10th Cir. 1999) (“The mere fact that [a habeas petitioner] is precluded from
filing a second § 2255 petition does not establish that the remedy in § 2255 is
-3-
inadequate.”). Therefore, Mr. Rich has not met his burden and is not entitled to
proceed under § 2241.
Mr. Rich also argues that the district court’s decision “effectively suspends
the writ of habeas corpus” in violation of the Constitution. See U.S. Const. art. I,
§ 9, cl. 2. This argument also fails. Section 2255’s limitation on second or
successive habeas petitions does not violate the Suspension Clause. Felker v.
Turpin, 518 U.S. 651, 664 (1996). Moreover, “the substitution of a collateral
remedy [such as § 2255] which is neither inadequate nor ineffective to test the
legality of a person’s detention does not constitute a suspension of the writ of
habeas corpus.” Swain v. Pressley, 430 U.S. 372, 381 (1977). Because Mr. Rich
has not shown that the remedy of § 2255 is inadequate or ineffective, we reject
his suspension argument.
III. Conclusion
Mr. Rich has failed to present a “reasoned, nonfrivolous argument” in
support of his contention that his § 2255 remedy is inadequate or ineffective. See
DeBardeleben, 937 F.2d at 505. We therefore DENY his motion to proceed in
forma pauperis and DISMISS this appeal.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-4-