FILED
United States Court of Appeals
Tenth Circuit
July 13, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GERARDO JUAREZ-LOZANO,
Petitioner - Appellant,
No. 09-3311
v. (D. Kansas)
(D.C. No. 5:09-CV-03220-RDR)
CLAUDE CHESTER, Warden;
UNITED STATES OF AMERICA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Gerardo Juarez-Lozano, a federal prisoner appearing pro se, appeals the
district court’s dismissal of his application for relief under 28 U.S.C. § 2241 and
its denial of his motion for reconsideration. We agree with the district court that
§ 2241 was not available to him because a remedy under 28 U.S.C. § 2255 was
not inadequate or ineffective. Accordingly, we affirm.
*
After examining the brief 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not binding precedent except under the doctrines of law of the case, res judicata,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.
Mr. Juarez-Lozano filed his claim under § 2241 in the United States
District Court for the District of Kansas. He contended (1) that he was sentenced
“based on a coerced guilty plea” but “did not appeal his illegal sentence pursuant
to 18 U.S.C. § 3742(a)(1)(2), due to the court’s violation of Federal Rule
Criminal Procedure 32 (c)(5),” R., Vol 1 at 3; (2) that his rights as a native of
Mexico under the Vienna Convention were violated in various ways; and (3) that
his trial counsel was ineffective. He had previously filed an unsuccessful motion
for relief under 28 U.S.C. § 2255.
The district court dismissed the action. It pointed out that a claim under
§ 2241 is not cognizable “unless . . . the remedy by motion [under § 2255] is
inadequate or ineffective to test the legality of [the prisoner’s] detention.”
28 U.S.C. § 2255(e). Mr. Juarez-Lozano, however, had shown no such
inadequacy or ineffectiveness. The court said that it was not enough that a claim
under § 2255 might be barred by the statute of limitations, see id. § 2255(f), or by
the restrictions on second-or-successive motions under § 2255, see id. §2255(h).
Mr. Juarez-Lozano filed a motion to reconsider under Fed. R. Civ. P. 59(e)
on the ground that § 2255 could not provide an adequate remedy for his claims
under the Vienna Convention. The district court denied the motion.
On appeal Mr. Juarez-Lozano argues (1) that § 2241 is the only remedy for
a habeas claim based on a treaty violation; (2) that he could not appeal under
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18 U.S.C. § 3742 because the sentencing judge violated Fed. R. Crim. P. 32; and
(3) that his court-appointed trial counsel was ineffective.
We reject Mr. Juarez-Lozano’s contentions. His Vienna Treaty argument
fails because § 2255 is available for claims based on treaties. See Davis v. United
States, 417 U.S. 333, 344 (1974). Mr. Juarez-Lozano has not shown why he could
not have brought his treaty claims or his other claims when he filed his original
§ 2255 motion. The remedy by motion under § 2255 is not inadequate or
ineffective simply because now he could be barred by timeliness requirements or
the strict restrictions on second or successive motions. See Sines v. Wilner,
No. 09-1347, 2010 WL 2473163, at *2 (10th Cir. June 21, 2010).
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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