Wilson v. Terrell , 283 F. App'x 658 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
July 2, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
EARNEST WILSON,
Petitioner-Appellant, No. 08-3136
(D.C. No. 5:07-CV-03197-RDR)
v. (D. Kansas)
DUKE TERRELL, Warden
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McCONNELL, and GORSUCH, 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
*
This order and judgment is not binding precedent, except under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.
Court for the District of Kansas of his petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241. We affirm.
The petitioner challenged a criminal judgment entered by the United
States District Court for the Northern District of Illinois. He alleged that he
is being illegally held because the sentencing court had no right to
resentence him without another plea or a trial, that the trial court lacked
subject matter jurisdiction, and that he was denied effective assistance of
counsel. He also challenged the dismissal of a 28 U.S.C. § 2255 motion he
filed on the ground that it was a second/successive motion.
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 [section 2255 motion] 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)). See also United States v.
Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008) (“A challenge to the
propriety of the federal conviction itself ... must proceed under § 2255, not
§ 2241.”) (citation omitted). 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
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such a remedy under 28 U.S.C. § 2241. Id.The petitioner has not established the inadequacy or ineffectiveness of
28 U.S.C. § 2255. The mere fact that he was denied relief under § 2255 does
not render it inadequate or ineffective. Id. “Failure to obtain relief under §
2255 does not establish that the remedy so provided is either inadequate or
ineffective.” Id. (quotation omitted).
Accordingly, the district court judgment is AFFIRMED. The mandate
shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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