Robinson v. Flowers ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 23 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
NOAH R. ROBINSON,
Petitioner-Appellant,
No. 99-6025
v. (W. District of Oklahoma)
(D.C. No. CIV-98-796-A)
A. M. FLOWERS,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, 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.
Noah R. Robinson, proceeding pro se, appeals the district court’s dismissal
without prejudice of Robinson’s “Motion to Vacate Conviction and Execution of
*
This order and judgment is not binding precedent, except under the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.
Sentence, and to Dismiss Indictment With Prejudice Pursuant to 28 U.S.C. §§
2241, 2242.” In his petition, Robinson alleged as follows: (1) the government
violated his “statutory rights pursuant to 18 U.S.C. § 2742 during the sentencing
hearing”; (2) the government violated his rights under the Ex Post Fact and
Double Jeopardy Clauses “prior to and during trial”; (3) the district court
applied the wrong Sentencing Guidelines Manuel “during the sentencing
hearing”; (4) the district court violated his rights under the Due Process and
Equal Protection Clauses “during the sentencing hearing”; and (5) the
government failed to properly charge, “prior to trial,” a prosecutable RICO
offense within the limitations period set forth in 18 U.S.C. § 3282.
The district court dismissed the petition pursuant to this court’s decision in
Bradshaw v. Story, 86 F.3d 164, 166 (10 th Cir. 1996), concluding that Robinson
needed to raise these claims in a 28 U.S.C. § 2255 petition in the district which
imposed the challenged sentences. In Bradshaw, this court summarized the
differences between § 2241 and § 2255 petitions as follows:
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. United States v. Scott, 803 F.2d
1095, 1096 (10 th Cir. 1986). It is not an additional, alternative, or
supplemental remedy to 28 U.S.C. § 2255. Williams v. United States,
323 F.2d 672, 673 (10 th Cir. 1963), cert. denied, 377 U.S. 984(1964).
A 28 U.S.C. § 2255 petition attacks the legality of detention,
Barkan v. United States, 341 F.2d 95, 96 (10 th Cir.), cert. denied, 381
U.S. 940 (1965), and must be filed in the district that imposed the
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sentence, United States v. Condit, 621 F.2d 1096, 1097 (10 th Cir.
1980). “The purpose of section 2255 is to provide a method of
determining the validity of a judgment by the court which imposed
the sentence, rather than by the court in the district where the
prisoner is confined.” Johnson v. Taylor, 347 F.2d 365, 366 (10 th
Cir. 1965).
Id.In what can best be charitably described as creative appellate advocacy,
Robinson contends that because his challenges, if successful, would shorten the
duration of his sentence, they are more appropriately considered as challenges to
the “execution” of his sentence. Robinson’s contentions are clearly foreclosed by
circuit precedent. Because each of Robinson’s challenges go to events occurring
at or prior to sentencing, he must bring his claims in a § 2255 petition in the
district that imposed the sentence. See id. at 167 (citing United States v. Flores,
616 F.2d 840, 842 (5 th Cir. 1980), for proposition that “petitioner’s appropriate
remedy is under § 2255 and not § 2241 where alleged errors occurred at or prior
to sentencing”).
Upon de novo review of the parties’ briefs and contentions, the district
court’s orders, and the entire appellate record, this court affirms for substantially
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those reasons set out in the district court orders dated November 4, 1998, and
December 3, 1998. The judgment of the United States District Court for the
Western District of Oklahoma is hereby AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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