FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS September 5, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
THARRON DENNIS BROWN,
Petitioner - Appellant, No. 13-1194
v. (D. Colorado)
TERESA K. COZZA-RHODES, (D.C. No. 1:12-CV-01448-REB)
Warden, FCI-Florence,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.
Applicant Tharron Dennis Brown, a federal inmate, appeals the denial by
the United States District Court for the District of Colorado of his application for
relief under 28 U.S.C. § 2241. He pleaded guilty in December 2005 to one count
of bank robbery, see 18 U.S.C. § 2113(a), and was sentenced to 120 months’
imprisonment. His current § 2241 application claims (1) that his Fifth and
*
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. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
Fourteenth Amendment rights were violated when the sentencing court calculated
his guidelines range in reliance on a presentence investigation report (PSR) that
erroneously assessed criminal-history points for crimes that somebody else had
committed; and (2) that his Fifth, Eighth, and Fourteenth Amendment rights have
been violated by the government’s use of the PSR to deny him certain
rehabilitative programs, security designations, vocational opportunities, and good-
time credits in prison.
The district court dismissed Claim 1 for lack of jurisdiction, noting that
Applicant was challenging “the validity of the sentence imposed in his criminal
case as a result of the allegedly erroneous information in the PSR.” Order on
Application for Writ of Habeas Corpus at 5, Brown v. Cozza–Rhodes,
No. 12-cv-01448-REB (D. Colo. Apr. 17, 2013) (Order). It ruled that he must
challenge the validity of his sentence in a motion under 28 U.S.C. § 2255 rather
than an application under § 2241. Applicant has not argued that the § 2255
remedy was “inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e), and the district court’s ruling was correct, see Brace v.
United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (“A petition brought under
28 U.S.C. § 2241 typically attacks the execution of a sentence rather than its
validity and must be filed in the district where the prisoner is confined. A § 2255
motion, on the other hand, is generally the exclusive remedy for a federal prisoner
seeking to attack the legality of detention, and must be filed in the district that
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imposed the sentence.” (citation, brackets, and internal quotation marks omitted));
id. at 1170 (“As [the defendant] has not demonstrated that § 2255 is an inadequate
or ineffective remedy, the district court correctly dismissed his § 2241 petition.”).
Regarding Claim 2, the district court ruled that to the extent that Applicant
was challenging the denial of rehabilitative programs, security designations, and
vocational opportunities in prison, he was attacking the conditions of his
confinement rather than the fact or duration of his confinement. The court
correctly noted that such claims are not cognizable grounds for habeas relief. See
Palma–Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (“In this circuit, a
prisoner who challenges the fact or duration of his confinement and seeks
immediate release or a shortened period of confinement, must do so through an
application for habeas corpus. In contrast, a prisoner who challenges the
conditions of his confinement must do so through a civil rights action.” (citation
omitted)). To the extent that Applicant alleged the denial of good-time credits,
the court said that “he may state an arguable habeas corpus claim because the
denial of good time credits would impact the length of his incarceration.” Order
at 6. But it dismissed the claim as meritless because Applicant had failed to
present any evidence that he had indeed been denied such credits as a result of the
allegedly erroneous PSR information. The rejection of Claim 2 is sound.
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Finally, Applicant claims for the first time in his opening brief on appeal
that he was denied the right to effective assistance of counsel under the Sixth
Amendment because his lawyer should have investigated and clarified the
allegedly false information in the PSR. Because his § 2241 application did not
present this claim to the district court, we decline to consider it. See United
States v. Flood, 713 F.3d 1281, 1291 (10th Cir. 2013) (declining to consider claim
of ineffective assistance of counsel not adequately raised in district court).
We AFFIRM the judgment of the district court and DENY the motion to
proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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