F I L E D
United States Court of Appeals
Tenth Circuit
JUL 24 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
JOHN G. WESTINE,
Petitioner - Appellant, No. 96-1455
v. (D. Colorado)
W. A. PERRILL, Warden; UNITED (D.C. No. 96-Z-79)
STATES OF AMERICA,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the doctrines of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. 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.
John G. Westine was tried and convicted in the United States District Court
for the Southern District of Ohio on charges of conspiracy, interstate
transportation of property taken by fraud, wire fraud, mail fraud, and money
laundering, and was sentenced on July 2, 1992, to 235 months in prison. The
money laundering count included a provision, pursuant to 18 U.S.C. § 982(a)(1),
for the forfeiture of various items of property, which was accomplished by order
dated July 15, 1992. On appeal, the Sixth Circuit affirmed the conviction,
sentence and forfeiture. See United States v. Westine, No. 92-3664, 1994 WL
88831 (6th Cir. March 17, 1994) (per curiam).
Westine then collaterally challenged his conviction and sentence pursuant
to 28 U.S.C. § 2255, arguing as follows:
(1) counsel rendered ineffective assistance, (2) the prosecution failed
to disclose evidence favorable to the defense, (3) the forfeiture of his
property in addition to his criminal conviction subjected him to
double jeopardy, and (4) erroneous information in his presentence
investigation report (PSI) was improperly used to enhance his
sentence.
The district court denied Westine’s § 2255 motion, and the Sixth Circuit
affirmed in an opinion from which the foregoing facts have been derived. See
Westine v. United States, No. 95-3745, 1996 WL 456031 (6th Cir. Aug. 12,
1996).
In the proceeding before us, Westine, proceeding pursuant to 28 U.S.C.
§ 2241, continues to attack his conviction and sentence, making arguments
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virtually identical to those described above. The district court, adopting the
recommendation of the magistrate judge, dismissed Westine’s petition on the
ground that § 2241 cannot be used as a substitute for proceeding under § 2255.
Westine has filed at least eleven appeals in this court, several of which,
including this appeal, involve petitions invoking 28 U.S.C. § 2241. We have
already explained to Mr. Westine the purpose of § 2241, and the fact that attacks
on the legality of his conviction and sentence must be brought under § 2255 and
in the jurisdiction in which he was convicted. See Westine v. Perrill, No.
94-1533, 1995 WL 397065 (10th Cir. July 7, 1995); Westine v. Perrill, No.
95-1503, 1996 WL 719995 (10th Cir. Dec. 16, 1996); see also Bradshaw v. Story,
86 F.3d 164 (10th Cir. 1996).
We have reviewed the record and conclude that for substantially the same
reasons set out in the recommendation of the magistrate judge, filed February 1,
1996, the district court did not err in dismissing this petition for lack of
jurisdiction, or in denying an evidentiary hearing.
In the district court, Westine was permitted to proceed in forma pauperis
and, as indicated above, the court addressed the merits of his petition.
Subsequently, the district court denied leave to proceed on appeal in forma
pauperis on the ground that Westine had filed three or more frivolous actions and
was, accordingly, barred under 28 U.S.C. § 1915(g). At the time of that order, the
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district court did not have the benefit of our recent decision in McIntosh v. United
States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997), in which we held that
§ 2241 petitions are not civil actions for purposes of various subsections of 28
U.S.C. § 1915. However, a prisoner seeking to proceed in forma pauperis with a
§ 2241 petition does remain obligated to comply with the traditional requirements
of that section. Id. at 812. Accordingly, we treat the proceeding before us as a
renewed motion by Westine for leave to proceed on appeal in forma pauperis and,
for the reasons stated above, we deny that motion because the petition is
frivolous. See id. at 812-13 (citing DeBardeleben v. Quinlan, 937 F.2d 502 (10th
Cir. 1991) and Coppedge v. United States, 369 U.S. 438 (1962)).
DISMISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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