FILED
United States Court of Appeals
Tenth Circuit
July 8, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
ARTHUR D’AMARIO, III,
Petitioner-Appellant,
v. No. 08-1016
(D.C. No. 1:07-CV-2425-ZLW)
BLAKE R. DAVIS, Warden, (D. Colorado)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and GORSUCH, 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.
Arthur D’Amario appeals the order and separate judgment entered by the
United States District Court for the District of Colorado denying his application
under 28 U.S.C. § 2241 for writ of habeas corpus. We affirm.
*
This order and judgment is not binding precedent, except under the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 D’Amario was convicted in the United States District Court for
the District of New Jersey of threatening to kill a federal judge. He was
sentenced to 84 months’ imprisonment. See United States v. D’Amario, No. 06-
CR-112-PSD (D. N.J. Mar. 26, 2007). His criminal appeal is proceeding before
the United States Court of Appeals for the Third Circuit. See United States v.
D’Amario, appeal docketed, No. 07-1955 (3rd Cir. Apr. 3, 2007).
Shortly after filing his criminal appeal, Petitioner filed a 28 U.S.C. § 2255
motion in the district court for the District of New Jersey raising claims based on
ineffective assistance of counsel. In a May 30, 2007 Order, the district court
denied the § 2255 motion, as premature, because of Petitioner’s criminal appeal
before the Third Circuit. Subsequently, the Third Circuit granted Petitioner’s
motion to voluntarily dismiss his civil appeal from the denial of his § 2255
motion. See D’Amario v. United States, No. 08-1606 (3rd Cir. May 30, 2007)
(unpublished order).
In November 2007, while incarcerated at the Federal Correctional
Institution in Englewood, Colorado, Arthur D’Amario filed a § 2241 application
in the District of Colorado raising claims based on prosecutorial misconduct and
insufficient evidence. The District of Colorado denied the application,
concluding that the appropriate remedy was under § 2255 in the District of New
Jersey where Petitioner was convicted and sentenced, and not under § 2241 in the
District of Colorado. This appeal followed.
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We review de novo the district court’s denial of a § 2241 application. See
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
Upon review of the record and appellate brief, we conclude the district
court was correct in denying the § 2241 application. A motion under § 2255 in
the District of New Jersey is the exclusive remedy for Petitioner to challenge his
2007 conviction and sentence after the Third Circuit renders a decision in his
criminal appeal. The fact that a § 2255 motion in the District of New Jersey at
this time is premature does not establish that relief under § 2255 is inadequate or
ineffective.
The district court’s January 4, 2008 Order and separate judgment are
AFFIRMED. The motion for leave to proceed in forma pauperis is DENIED.
The mandate shall issue forthwith.
Entered for the Court,
PER CURIAM
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