F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 31 2002
TENTH CIRCUIT PATRICK FISHER
Clerk
CONRAD J. BRAUN,
Petitioner-Appellant,
No. 02-1292
v. (D.C. No. 02-Z-868)
(D. Colorado)
WARDEN GALLEGOS,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.
Conrad J. Braun pled guilty in 1994 in federal district court in Missouri to
five counts of wire fraud and five counts of interstate transportation of funds
obtained by fraud. He was sentenced to ninety months in prison and ordered to
pay almost two million dollars in restitution. See United States v. Braun, 60 F.3d
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
451 (8th Cir. 1995). After numerous proceedings in the state courts of Kansas
and in various federal courts, Mr. Braun brought this pro se petition pursuant to
28 U.S.C. § 2241, attacking expired Kansas state court convictions that were used
to enhance his federal fraud sentence. The district court denied relief. Mr. Braun
filed a motion asking the court to reconsider dismissal and grant him placement in
a community corrections facility. The court denied the motion. For the reasons
set out below, we deny Mr. Braun’s request to proceed in forma pauperis and
dismiss the appeal.
It appears that Mr. Braun was released from federal custody on June 18,
2002, and is currently under no form of supervision. The government suggests
that in view of Mr. Braun’s present status, the entire appeal is moot. 1 Mr. Braun
concedes that the appeal of his request for placement in a community corrections
facility is moot. We agree and accordingly dismiss as moot the appeal of the
denial of his motion to reconsider.
Mr. Braun contends that the remainder of his appeal is not moot. We agree.
Under the collateral consequences exception to the mootness doctrine, a matter is
not moot if collateral consequences from a judgment give a party a substantial
1
Although § 2241 requires as a jurisdictional prerequisite that a petitioner
be in custody, this element is established as of the time the petition is filed. See
Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Because Mr. Braun was in
custody when he filed this action, the court was authorized to consider it and his
later release from custody does not deprives us of jurisdiction.
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stake in the outcome of the case. See Carafas v. LaVallee, 391 U.S. 234, 237
(1968). Here Mr. Braun’s habeas petition attacks his prior state court criminal
convictions, and the Supreme Court presumes that a wrongful criminal conviction
has continuing collateral consequences sufficient to present a case or controversy
and avoid dismissal on the ground of mootness. See Spencer v. Kenna, 523 U.S.
1, 7-8 (1998) (citing Sibron v. New York, 392 U.S. 40, 55-56 (1968)).
While Mr. Braun’s habeas petition is thus not moot, we nonetheless
conclude that it was properly dismissed. A petition under section 2241 attacks the
execution of a sentence rather than its validity and must be filed in the district
where the petitioner is incarcerated. See Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996). A motion under 28 U.S.C. § 2255, on the other hand, is the
exclusive method for challenging the validity of a judgment and sentence, and
must be filed in the district in which the sentence was imposed. Bradshaw, 86
F.3d at 166. Section 2255 provides an exception, however, and allows a
challenge that otherwise must be brought under that provision to be brought under
section 2241 upon a showing that the section 2255 remedy is “inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255; see also
Bradshaw, 86 F.3d at 166.
“Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or
ineffective only in extremely limited circumstances.” Caravalho v. Pugh, 177
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F.3d 1177, 1178 (10th Cir. 1999). “Failure to obtain relief under 2255 does not
establish that the remedy so provided is either inadequate or ineffective,”
Bradshaw, 86 F.3d at 166 (citation omitted), and thus the fact that relief is no
longer available under that provision does not render it either inadequate or
ineffective. Mr. Braun’s ability to challenge his state convictions under section
2255 may now well be extinguished. In concluding that section 2255 could not be
used to collaterally attack state convictions used in federal sentencing, the
Supreme Court has recently held that “[i]f . . . a prior conviction used to enhance
a federal sentence is no longer open to direct or collateral attack in its own right
because the defendant failed to pursue those remedies while they were available
. . . , then that defendant is without recourse.” Daniels v. United States, 532 U.S.
374, 382 (2001). 2 However, the fact that section 2255 is no longer available does
not mean that the federal remedies available at one point were not adequate or
effective, it merely means that Mr. Braun did not pursue them in a timely manner.
See, e.g., Pack v. Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000) (“section 2255’s
substantive and procedural barriers by themselves do not establish that section
2255 is inadequate or ineffective”) (citing Triestman v. United States, 124 F.3d
2
Mr. Braun attempted to challenge his state convictions in a petition
brought under 28 U.S.C. § 2254 and filed in the federal district court in Kansas.
These proceedings were dismissed for failure to exhaust. See Braun v. Stovall,
No. 97-3237, 1998 WL 165115 (10th Cir. April 3, 1998); Braun v. Stovall, Nos.
95-3275, 95-3286, 95-3324, 1996 WL 211737 (10th Cir. April 30, 1996).
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361, 376 (2d Cir. 1997)).
Mr. Braun also appears to urge the court to construe his action as one in the
nature of writ of error coram nobis, which would be available to challenge his
state convictions regardless of his custody status. See United States v. Bustillos,
31 F.3d 931, 934 (10th Cir. 1994). This remedy, however, is “extremely
circumscribed,” United States v. Hernandez, 94 F.3d 606, 613 n.5 (10th Cir.
1996), and is “available only to correct errors resulting in a complete miscarriage
of justice, or under circumstances compelling such action to achieve justice,”
Bustillos, 31 F.3d at 934. Mr. Braun’s pleadings simply do not carry this heavy
burden. 3
We DENY Mr. Braun’s request for leave to proceed on appeal in forma
pauperis and DISMISS his appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
3
We note that Mr. Braun has unsuccessfully challenged his state
convictions by coram nobis in the state courts of Kansas.
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