Reed v. Peterson , 31 F. App'x 629 ( 2002 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 26 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    DARRICK D. REED,
    Petitioner - Appellant,
    No. 01-6362
    v.
    (No. 01-CIV-1014-C)
    (W.D. Oklahoma)
    T. C. PETERSON, Warden,
    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before EBEL, KELLY, and LUCERO, Circuit Judges.
    Pro se petitioner Darrick D. Reed appeals the district court’s dismissal of
    his application for a writ of habeas corpus. We conclude that petitioner’s
    application should be construed as an impermissible second or successive motion
    to vacate, set aside, or correct his sentence, and we affirm.
    Reed pled guilty to possession of a firearm by an unlawful user of
    marijuana in violation of 
    18 U.S.C. § 922
    (g)(3) and was sentenced to thirty-seven
    *
    The case is unanimously ordered submitted without oral argument
    pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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    judgment is not binding precedent, except under the doctrines of law of the case,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.
    months imprisonment and three years supervised release. On February 21, 2001,
    his initial 
    28 U.S.C. § 2255
     motion to vacate, set aside, or correct his sentence
    was dismissed as time-barred.
    Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a
    second or successive § 2255 motion may not proceed unless it is certified by a
    panel of the appropriate court of appeals to contain
    (1) 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; or
    (2) a new rule of constitutional law, made retroactive to cases
    on collateral review by the Supreme Court, that was previously
    unavailable.
    
    28 U.S.C. § 2255
     para. 8. On May 2, 2001, this Court denied Reed leave to file a
    second or successive § 2255 motion to challenge his sentence under the United
    States Sentencing Guidelines. Two months later, Reed filed the instant petition
    for habeas relief, ostensibly under 
    28 U.S.C. § 2241
    , alleging that imposition of
    his sentence involved a misapplication of the same guidelines provision. The
    district court construed the petition as one that should have been filed under
    § 2255, and as such, the court held that the petition should be dismissed as an
    improper second or successive motion to vacate, set aside, or correct his sentence.
    We conclude that the court below correctly construed Reed’s motion as one
    filed under 
    28 U.S.C. § 2255
    . Although execution of a sentence is subject to
    -2-
    challenge via 
    28 U.S.C. § 2241
    , the appropriate vehicle for challenging the
    validity of a sentence is 
    28 U.S.C. § 2255
    . See Haugh v. Booker, 
    210 F.3d 1147
    ,
    1149 (10th Cir. 2000). Consequently, we AFFIRM the dismissal of Reed’s
    motion for substantially the same reasons stated below. Reed’s application to
    proceed in forma pauperis is GRANTED.
    The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -3-
    

Document Info

Docket Number: 01-6362

Citation Numbers: 31 F. App'x 629

Judges: Ebel, Kelly, Lucero

Filed Date: 3/26/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023