Rhodes v. TRUE

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 8 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk

DAVID RHODES,

Petitioner-Appellant,
No. 97-3191
v.
(D.C. No. 97-CV-3133)
(D. Kan.)
PAGE TRUE, Warden, USP -
Leavenworth,

Respondent-Aappellee.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, 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This order and judgment is not binding precedent except under the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.
 Petitioner David Rhodes, an inmate at the United States Penitentiary,

Leavenworth, Kansas, appearing pro se, brought a habeas corpus petition under

28 U.S.C. § 2241, alleging he received ineffective assistance of counsel during

criminal proceedings conducted in the United States District Court for the District

of Nevada and was erroneously denied an evidentiary hearing related to that

claim. The United States District Court for the District of Kansas dismissed the

petition, holding that Mr. Rhodes was abusing the writ by raising the same issues

he unsuccessfully asserted in previous 28 U.S.C. § 2255 actions. Mr. Rhodes now

appeals and we affirm.

Mr. Rhodes was convicted on various drug related charges and the

conviction was affirmed by the Ninth Circuit Court of Appeals. See United States

v. Rhodes, 782 F.2d 1055 (No. 85-1105) (9th Cir. Jan 15, 1986) (unpublished

decision). Mr. Rhodes then filed his first motion under § 2255. Mr. Rhodes

alleged he was denied effective assistance of counsel because his attorney failed

to secure the presence of a defense witness, purported co-conspirator Stanley

Donaldson, and allegedly made detrimental admissions in oral argument. The

district court denied both Mr. Rhodes motion and his request for an evidentiary

hearing on the ineffectiveness of counsel claims. The Ninth Circuit affirmed.

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See United States v. Rhodes, 782 F.2d 1055 (No. 86-2961) (9th Cir. July 28,

1988) (unpublished decision).

In his second motion under 28 U.S.C. § 2255, Mr. Rhodes alleged

prosecutorial misconduct based on the government's alleged failure to disclose

information related to the Rule 35 motions for reduction of sentence made by

certain witnesses for the prosecution. He further claimed the district court erred

at his trial by refusing to admit into evidence an out-of-court statement by Stanley

Donaldson. 1 The district court denied Mr. Rhodes' motion and the Ninth Circuit

affirmed. See United States v. Rhodes, 959 F.2d 243 (No. 90-15118) (9th Cir.

Apr. 9, 1992) (unpublished decision).

In his third motion under § 2255, Mr. Rhodes again raised the issue of his

trial counsel's admissions in closing argument and failure to call Stanley

Donaldson as a witness. Conceding these issues had been raised in his earlier

motions, Mr. Rhodes contended they were never adjudicated. The district court

dismissed his motion as successive and an abuse of the writ, and the Ninth Circuit

1
In his first § 2255 motion, Mr. Rhodes alleged his attorney provided
ineffective assistance by failing to take appropriate steps to subpoena this same
co-conspirator.

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affirmed. See United States v. Rhodes, 21 F.3d 1115 (No. 93-16798) (9th Cir.

Mar. 29, 1994) (unpublished decision).

Mr. Rhodes then petitioned the district court pursuant to 28 U.S.C. § 2241,

alleging the § 2255 remedy was inadequate. Mr. Rhodes reiterated his claim of

ineffective assistance of counsel, his request for an evidentiary hearing, and his

allegation that his § 2255 motions were not determined on the merits. The district

court rejected Mr. Rhodes' argument and dismissed the petition, concluding the

§ 2241 action was merely an improper attempt by Mr. Rhodes to obtain further

review of previously adjudicated claims.

We review the district court's dismissal of Mr. Rhodes' habeas corpus

petition de novo. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A

habeas corpus petition pursuant to 28 U.S.C. § 2241 is not intended as an

additional, alternative, or supplemental remedy to that afforded by 28 U.S.C.

§ 2255. Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963), cert.

denied, 377 U.S. 980 (1964). For federal inmates like Mr. Rhodes, the § 2255

remedy "supplants habeas corpus, unless it is shown to be inadequate or

ineffective to test the legality of the prisoner's detention." Id.

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 Mr. Rhodes failure to obtain relief through a series of § 2255 motions in

and of itself does not establish the inadequacy or ineffectiveness of the remedy.

See id. Contrary to Mr. Rhodes assertions, the record demonstrates the claims

contained in his § 2255 motions have been fully and fairly adjudicated on the

merits. Thus, Mr. Rhodes cannot bring this action pursuant to § 2241 because he

has failed to demonstrate that § 2255 is inadequate to test the legality of his

detention.

Accordingly, we AFFIRM the dismissal of the petition.

Entered for the Court

WADE BRORBY
United States Circuit Judge

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