Valencia v. United States , 166 F. App'x 378 ( 2006 )


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  •                                                                    F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    February 7, 2006
    FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
    Clerk of Court
    BERNARD VALENCIA,
    Petitioner-Appellant,
    No. 05-2155
    v.                                        (D.C. No. CIV-05-317 JB/DJS)
    (D. N.M.)
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ORDER AND JUDGMENT *
    Before TACHA, Chief Judge, 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.
    The petitioner appeals the dismissal by the United States District
    Court for the District of New Mexico of his petition for writ of habeas
    *
    This order and judgment is not binding precedent, except under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.
    corpus filed pursuant to 
    28 U.S.C. § 2241
    . We affirm.
    In the petition filed in the district court, the petitioner challenged a
    conviction and sentence imposed by the United States District Court for the
    District of Guam following his conviction for conspiracy to import
    methamphetamine. He alleged that his guilty plea was involuntary, that he
    was denied effective assistance of counsel, and that his sentence is
    unconstitutional under the United States v. Booker, 
    543 U.S. 220
     (2005),
    line of cases. The district court determined that relief under § 2241 is not
    appropriate and 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
    2
    so provided is either inadequate or ineffective.” Id. (quotation omitted).
    The petitioner has not established the inadequacy or ineffectiveness
    of 
    28 U.S.C. § 2255
    .
    Accordingly the judgment of the district court is AFFIRMED. The
    mandate shall issue forthwith.
    Entered for the Court
    PER CURIAM
    3
    

Document Info

Docket Number: 05-2155

Citation Numbers: 166 F. App'x 378

Judges: Briscoe, Per Curiam, Tacha, Tymkovich

Filed Date: 2/7/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023