Owens-El v. Pugh , 16 F. App'x 881 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS AUG 1 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
JAMES JOSEPH OWENS-EL,
Petitioner-Appellant,
No. 01-1166
v.
(D.C. No. 01-Z-239)
(Colorado)
MICHAEL V. PUGH; UNITED
STATES PAROLE COMMISSION,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
James Joseph Owens, a pro se federal prisoner, filed this action under 28
U.S.C. § 2241 challenging the calculation of his parole date by the United States
Parole Commission. Mr. Owens was originally convicted of robbery in 1978 in
*
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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
the United States District Court for the Central District of California. He appears
to allege that, in considering his eligibility for parole on that charge, the
Commission erroneously took into account his conviction in 1984 for the
attempted murder of a correctional counselor. Mr. Owens asserts that in fact
another federal prisoner named Owens committed that crime.
A magistrate judge reviewed Mr. Owens’ pleading and found it to be vague
and conclusory. Accordingly, the judge ordered Mr. Owens to filed an amended
application identifying any specific decision by the Board he is challenging and
demonstrating that he has exhausted his administrative remedies. Mr. Owens
filed an amended application. The district court reviewed this pleading,
determined that Mr. Owens had failed to correct the deficiencies, and dismissed
the action. Mr. Owens appeals, again asserting that the Board is improperly
withholding parole on the basis of a crime he alleges he did not commit.
The material Mr. Owens has attached to his section 2241 application
reveals that he did present to the Commission his claim that his parole guideline
calculation was incorrect because it considered a crime he did not commit, that
the Commission rejected his claim, and is in fact using this conviction in setting
his parole guideline range. Accordingly, we conclude that Mr. Owens has set out
his claim against the Commission with sufficient particularity, and that he has
shown exhaustion of his administrative remedies. We nonetheless hold that his
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section 2241 application must be dismissed for the following reasons.
Other than bare conclusory allegations, Mr. Owens has presented nothing to
support his claim that the Commission acted improperly in considering his 1984
conviction. To the contrary, the attachments provided by Mr. Owens himself
demonstrate that the Commission established he was in fact convicted of the
attempted murder in 1984 and given a new and consecutive twenty-year sentence
for that crime. 1 Thus Mr. Owens has failed to state a claim against the
Commission based on its alleged use of incorrect information.
Although couched as a challenge to the calculation of his parole guidelines,
in essence Mr. Owens is asserting that he is innocent of a crime that the
Commission used is making that calculation. The proper avenue of relief on this
claim is to file a motion under 28 U.S.C. § 2255 in the court that imposed
sentence on the challenged conviction. The purposes of petitions under section
2241 and section 2255 are distinct and well established. “A petition under 28
U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must
be filed in the district where the prisoner is confined.” Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir. 1996). In contrast, “[a] 28 U.S.C. § 2255 petition
attacks the legality of detention . . . and must be filed in the district that imposed
1
We note that Mr. Owens’ conviction for this assault was affirmed in a
published opinion. See United States v. Owens-El, 889 F.2d 913 (9th Cir. 1989)
(per curiam).
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the sentence.” Id. (citation omitted). Unless determined to be inadequate or
ineffective, a section 2255 petition is the exclusive means for challenging the
validity of a conviction. See Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.
1965). Here Mr. Owens is challenging the validity of his 1984 conviction and
sentence for attempted murder, albeit by claiming that the alleged invalid
conviction was improperly used in calculating his parole eligibility. Accordingly
he must pursue that claim in the sentencing court under section 2255.
The judgment of dismissal is AFFIRMED. 2
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
2
Mr. Owens has moved to proceed in forma pauperis on appeal. We have
reviewed the material filed by Mr. Owens in support of his motion and conclude
that he has failed to make a reasoned, nonfrivolous argument on the law and facts.
See McIntosh v. United States Parole Commission, 115 F.3d 809, 812-13 (10th
Cir. 1997). Accordingly, his request to proceed in forma pauperis is denied.
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