Jones v. Gallegos , 188 F. App'x 754 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 12, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
KEV IN M . JONES,
Petitioner-A ppellant, No. 06-3069
(D.C. No. 05-CV-3182-RDR)
v. (D. Kansas)
E.J. GALLEGOS, W arden, USP-
Leavenworth,
Respondent-Appellee.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, KELLY and HENRY, Circuit Judges.
After examining the briefs and 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.
The petitioner appeals the dismissal by the United States District Court for
*
T h i s o r d e r a n d ju d g m e n t i s n o t b i n d i n g p r e c e d e n t, e x c e p t u n d e r t h e
d o c t r in e s o f l a w o f t h e c a s e , r e s j u d i c a t a a n d c o l la t e r a l e s t o p p e l . T h e c o u r t
g e n e ra ll y d i s f a v o rs t h e c it a ti o n o f o r d e r s a n d ju d g m e n ts ; n e v e rt h e le s s , a n
o r d e r a n d j u d g m e n t m a y b e c i te d u n d e r t h e t e r m s a n d c o n d i ti o n s o f 1 0 t h C i r.
R . 36.3.
the District of Kansas of his petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2241. W e affirm.
In the petition filed in the district court, the petitioner challenged his drug
and firearms convictions and the resulting sentence entered by the United States
District Court for the District of Nebraska. He alleged that: 1) his guilty plea
was not knowing and voluntary; 2) false testimony was presented to the grand
jury which issued the indictment; 3) he was denied effective assistance of
counsel; 4) the prosecution engaged in misconduct; 5) he w as denied due process,
and 6) he is actually innocent. The district court dismissed.
Normally, “‘[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. A 28 U.S.C. § 2255 petition attacks the legality of
detention, and must be filed in the district that imposed the sentence.’” Haugh v.
Booker, 210 F.3d 1147, 1149 (10th Cir.2000) (quoting Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir.1996)). Section 2241 “is not an additional, alternative, or
supplemental remedy to 28 U.S.C. § 2255.” Bradshaw, 86 F.3d at 166. Only if
the petitioner shows that § 2255 is “inadequate or ineffective” to challenge the
validity of a judgment or sentence may a prisoner petition for such a remedy
under 28 U.S.C. § 2241. Id. “Failure to obtain relief under § 2255 does not
establish that the remedy so provided is either inadequate or ineffective.” Id.
(quotation omitted).
2
The petitioner has not established the inadequacy or ineffectiveness of 28
U.S.C. § 2255.
Accordingly the judgment of the district court is AFFIRM ED. The
mandate shall issue forthwith.
Entered for the Court
Per Curiam
3