Lee v. Maye , 667 F. App'x 297 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
U N I T E D S T A T E S C O U R T O F A P P E A L S June 21, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
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BRANDON CHE LEE,
Petitioner - Appellant,
v. No. 16-3021
(D.C. No. 5:14-CV-03205-KHV)
CLAUDE MAYE, Warden, (D. Kan.)
Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
_________________________________
Mr. Brandon Che Lee is a federal prisoner who seeks habeas relief
under 28 U.S.C. § 2241. He claims that (1) he is being incarcerated under
a false criminal case, No. SACR07-AG-1, and (2) prison officials are
*
The Court concludes that oral argument would not materially aid
our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th
Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
poisoning his food. The court dismissed
! the first claim on grounds that the claim was duplicative,
successive, and abusive and
! the second claim on grounds that it had been improperly
raised and was duplicative.
The court also dismissed both claims on the ground that Mr. Lee had
failed to pay the filing fee or move for leave to proceed in forma
pauperis. Mr. Lee appeals and seeks leave to proceed in forma pauperis.
We affirm and decline to grant leave to proceed in forma pauperis.
The Appeal
The first claim was previously asserted in Lee v. Maye, No. 14-
3054-RDR, 2014 WL 1643521 (D. Kan. Apr. 24, 2014) (unpublished).
There, the federal district court dismissed the claim, holding that Mr. Lee
could not prosecute a habeas petition under § 2241 because he had an
adequate, effective remedy under 28 U.S.C. § 2255. Id. at *2. Mr. Lee
did not appeal from this ruling. Instead, he asserted the same claim in
this action. We agree with the district court’s conclusion that the claim is
duplicative with the one previously asserted in Lee v. Maye, No. 14-
3054-RDR (D. Kan.). See Stanko v. Davis, 617 F.3d 1262, 1269 (10th Cir.
2010); 28 U.S.C. § 2244(a).
The district court dismissed the second claim on two grounds: (1)
Section 2241 is not the proper vehicle for bringing a conditions-of-
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confinement claim and (2) the claim was duplicative. We need not decide
whether this claim was duplicative. Because the poisoning of food would
not affect the fact or duration of Mr. Lee’s confinement, the district court
could not have awarded habeas relief even if Mr. Lee had proven the
allegations in his petition. See Palma-Salazar v. Davis, 677 F.3d 1031,
1035 (10th Cir. 2012). In these circumstances, the district court acted
correctly in dismissing the claim.
We affirm.
Leave to Appeal in Forma Pauperis
Mr. Lee also requests leave to appeal in forma pauperis. The
district court denied his request, partially on the ground that Mr. Lee’s
habeas petition was frivolous. See 28 U.S.C. § 1915(a)(3). Because we
agree that Mr. Lee’s habeas petition was frivolous, we too deny Mr.
Lee’s request to appeal in forma pauperis.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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