Adams v. Wiley , 290 F. App'x 156 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 25, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
ERIC ADAMS,
Petitioner-Appellant,
No. 08-1204
v. (D.C. No. 1:08-CV-538-ZLW)
(D. Colorado)
R. WILEY,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, BRISCOE, and TYMKOVICH, 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.
Eric Adams appeals an order 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This order and judgment is not binding precedent, except under the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.
In 1995 Petitioner Adams was convicted by a jury in the United States
District Court for the Eastern District of New York on fifteen counts of
racketeering and racketeering conspiracy; robbery and robbery conspiracy
affecting interstate commerce; and using and carrying firearms in connection with
crimes of violence. He was sentenced to two concurrent terms of life
imprisonment plus consecutive terms totaling sixty-five years. His convictions
and sentence were affirmed on direct appeal to the United States Court of Appeals
for the Second Circuit. See United States v. Adams, 101 F.3d 684 (2d.Cir. May
15, 1996) (unpublished), cert. denied, 519 U.S. 904 (1996).
Petitioner filed a 28 U.S.C. § 2255 motion in the Eastern District of New
York, which was denied. On appeal, the Second Circuit denied a certificate of
appealability and dismissed. See United States v. Adams, No. 99-2216 (2nd. Cir.
Aug. 1, 2000) (unpublished order). In September 2000 he filed a motion for
authorization in the Second Circuit to file a second or successive § 2255 motion.
He argued that the federal court that convicted him lacked subject matter
jurisdiction because when the federal criminal proceeding was commenced
against him, a parallel state criminal proceeding was pending against him arising
from the same conduct, and that the pendency of the state proceeding during the
early stages of the federal proceeding deprived the federal court of jurisdiction
and therefore rendered the federal criminal judgment void. The Second Circuit
denied the motion for authorization.
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In 2008, while incarcerated at the United States Penitentiary in Florence,
Colorado, Petitioner Adams filed a § 2241 petition in the district court for the
District of Colorado challenging his 1995 convictions based on the same
jurisdictional ground raised in his 2000 motion for authorization filed in the
Second Circuit. The District of Colorado denied the § 2241 petition, concluding
that the appropriate remedy for Petitioner was under § 2255 in the Eastern District
of New York where he was convicted and sentenced, and not under § 2241 in the
District of Colorado. This appeal followed.
We review de novo the district court’s dismissal of Eric Adams’ § 2241
application. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
Upon review of the record and appellate brief, we conclude that the district
court was correct in denying the § 2241 petition. A § 2241 petition is not the
proper means to raise the claims alleged by Petitioner Adams. A § 2255 motion
in the Eastern District of New York is the exclusive remedy for Petitioner to
challenge his 1995 convictions and sentence, unless it is inadequate or
ineffective. Petitioner, however, has not established the inadequacy or
ineffectiveness of a § 2255 motion. The mere fact that he has been denied relief
under § 2255 does not establish that this statutory remedy is inadequate or
ineffective. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The fact
that he is precluded from filing another § 2255 motion in the Eastern District of
New York does not establish that this statutory remedy is inadequate or
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ineffective. See Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999). And
although second or successive applications are restricted under the Antiterrorism
and Effective Death Penalty Act, they are not prohibited. See 28 U.S.C. §§
2244(b)(2), 2255.
The district court’s April 30, 2008 Order of Dismissal and separate
judgment are AFFIRMED. Petitioner’s 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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