Jones v. Gallegos

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 12, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

KEV IN M . JONES,

Petitioner-A ppellant, No. 06-3069
(D.C. No. 05-CV-3182-RDR)
v. (D. Kansas)

E.J. GALLEGOS, W arden, USP-
Leavenworth,

Respondent-Appellee.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Judge, KELLY and HENRY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

The petitioner appeals the dismissal by the United States District Court for

*
T h i s o r d e r a n d ju d g m e n t i s n o t b i n d i n g p r e c e d e n t, e x c e p t u n d e r t h e
d o c t r in e s o f l a w o f t h e c a s e , r e s j u d i c a t a a n d c o l la t e r a l e s t o p p e l . T h e c o u r t
g e n e ra ll y d i s f a v o rs t h e c it a ti o n o f o r d e r s a n d ju d g m e n ts ; n e v e rt h e le s s , a n
o r d e r a n d j u d g m e n t m a y b e c i te d u n d e r t h e t e r m s a n d c o n d i ti o n s o f 1 0 t h C i r.
R . 36.3.
the District of Kansas of his petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2241. W e affirm.

In the petition filed in the district court, the petitioner challenged his drug

and firearms convictions and the resulting sentence entered by the United States

District Court for the District of Nebraska. He alleged that: 1) his guilty plea

was not knowing and voluntary; 2) false testimony was presented to the grand

jury which issued the indictment; 3) he was denied effective assistance of

counsel; 4) the prosecution engaged in misconduct; 5) he w as denied due process,

and 6) he is actually innocent. The district court dismissed.

Normally, “‘[a] petition under 28 U.S.C. § 2241 attacks the execution of a

sentence rather than its validity and must be filed in the district where the

prisoner is confined. A 28 U.S.C. § 2255 petition attacks the legality of

detention, and must be filed in the district that imposed the sentence.’” Haugh v.

Booker, 210 F.3d 1147, 1149 (10th Cir.2000) (quoting Bradshaw v. Story, 86

F.3d 164, 166 (10th Cir.1996)). Section 2241 “is not an additional, alternative, or

supplemental remedy to 28 U.S.C. § 2255.” Bradshaw, 86 F.3d at 166. Only if

the petitioner shows that § 2255 is “inadequate or ineffective” to challenge the

validity of a judgment or sentence may a prisoner petition for such a remedy

under 28 U.S.C. § 2241. Id. “Failure to obtain relief under § 2255 does not

establish that the remedy so provided is either inadequate or ineffective.” Id.

(quotation omitted).

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 The petitioner has not established the inadequacy or ineffectiveness of 28

U.S.C. § 2255.

Accordingly the judgment of the district court is AFFIRM ED. The

mandate shall issue forthwith.

Entered for the Court

Per Curiam

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