F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
NOV 2 2004
JAMES JOSEPH OWENS-EL,
Petitioner - Appellant, No. 04-1292
v. (D.C. No. 04-ES-872)
ROBIN A. HOOD, Warden, (D. Colo.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge , BRISCOE , and HARTZ , Circuit Judges.
Applicant James Joseph Owens-El, appearing pro se, appeals the district
court's dismissal of his application for writ of habeas corpus under 28 U.S.C.
§ 2241. Applicant filed a § 2241 application in the United States District Court for the District of Colorado challenging the validity of the sentence he is serving
in the United States Penitentiary, Administrative Maximum, at Florence,
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Colorado. That sentence was imposed by the United States District Court for the
Central District of California. The Colorado federal district court denied his
claim and dismissed the action, holding that Applicant has an adequate and
effective remedy in the sentencing district. We review de novo a district court's
dismissal of an application for a writ of habeas corpus under § 2241. See
Bradshaw v. Story, 86 F.3d 164
, 166 (10th Cir. 1996). We exercise jurisdiction
under 28 U.S.C. § 1291, and AFFIRM.
Applicant's principal argument appears to be that the remedy provided in
28 U.S.C. § 2255 is inadequate or ineffective because he has been denied relief
under that theory. He further asserts that he should be allowed to bring his claim
under § 2241 because he is prohibited from filing a second or successive § 2255
application in the sentencing court. These arguments lack merit.
"Failure to obtain relief under § 2255 does not establish that the remedy so
provided is either inadequate or ineffective." Williams v. United States, 323 F.2d 672
, 673 (10th Cir. 1963) (internal quotation marks omitted). Nor does the fact
that Applicant is procedurally barred from filing a second or successive § 2255
application. See Caravalho v. Pugh, 177 F.3d 1177
, 1179 (10th Cir. 1999).
Applicant also claims he is actually innocent because one or more juvenile
convictions that were used to enhance his federal sentence have since been
vacated. The district court ruled that these facts do not render § 2255 inadequate
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or ineffective. Section 2255 specifically allows a second or successive motion in
the sentencing court based on "newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense." 28 U.S.C. § 2255. As we have previously
instructed, Applicant's appropriate avenue of relief is through 28 U.S.C. § 2255
in the sentencing court, and his "dissatisfaction with the results he has obtained in
the sentencing court does not establish that 2255 was an inadequate or
ineffective remedy." Owens v. Story, No. 95-1367, 1995 WL 745962, at *1 (10th
Cir. Dec. 15, 1995); see also Owens v. Pugh, 1999 WL 682895, at *1 (10th Cir.
Sept. 2, 1999).
For substantially the same reasons set forth in the district court's June 17,
2004, Order and Judgment, we AFFIRM the judgment below. Finding no
"reasoned, nonfrivolous argument on the law and facts in support of the issues
raised," DeBardeleben v. Quinlan, 937 F.2d 502
, 505 (10th Cir. 1991), we also
deny Applicant's motion to proceed in forma pauperis. To the extent that
Applicant's "Affidavit & Memorandum Pursuant to the Penalties for Perjury,"
filed on October 26, 2004, seeks appointment of counsel or any other relief, it is
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ENTERED FOR THE COURT
Harris L Hartz
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