Filed: Oct. 04, 2013
Latest Update: Mar. 28, 2017
Summary: *, This order and judgment is not binding precedent except under the, doctrines of law of the case, res judicata, and collateral estoppel.Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. A federal prisoner does not need a COA to appeal the dismissal of a, § 2241 habeas petition.
FILED
United States Court of Appeals
Tenth Circuit
October 4, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN GREGORY LAMBROS,
Petitioner - Appellant,
v. No. 13-3159
(D. Kansas)
CLAUDE MAYE, (D.C. No. 5:13-CV-03034-RDR)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
John Lambros, a federal prisoner proceeding pro se, appeals from an order
of the United States District Court for the District of Kansas dismissing his
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
28 U.S.C. § 2241 habeas corpus petition without prejudice for lack of jurisdiction.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the
district court’s order of dismissal.
Lambros’s § 2241 petition seeks to challenge the judgment underlying his
four drug-related convictions, which judgment was entered in 1993 in the United
States District Court for the District of Minnesota. See generally United States v.
Lambros, 404 F.3d 1034, 1035 (8th Cir. 2005) (discussing Lambros’s numerous
attempts, via multiple procedural avenues, to have his convictions set aside). In
two exceedingly comprehensive orders, the district court concluded it lacked
jurisdiction over Lambros’s § 2241 petition because the relief he sought was
within the purview of 28 U.S.C. § 2255 (properly filed in the court of conviction)
and Lambros had failed to demonstrate the remedy set out in § 2255 was
inadequate or ineffective. 1 See Caravalho v. Pugh,
177 F.3d 1177, 1178 (10th
1
As this court has made clear,
A petition brought under 28 U.S.C. § 2241 typically attacks
the execution of a sentence rather than its validity and must be filed
in the district where the prisoner is confined. A § 2255 motion, on
the other hand, is generally the exclusive remedy for a federal
prisoner seeking to attack the legality of detention, and must be filed
in the district that imposed the sentence.
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (quotations,
citations, and alteration omitted); see also Williams v. United States,
323 F.2d
672, 673 (10th Cir. 1963) (“The exclusive remedy for testing the validity of a
[federal] judgment and sentence, unless it is inadequate or ineffective, is that
(continued...)
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Cir. 1999) (setting out the “extremely limited circumstances” in which federal
courts have concluded the remedy set out in § 2255 is inadequate or ineffective);
see also Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (holding a
petitioner “bears the burden of demonstrating that the remedy in § 2255 is
inadequate or ineffective”). 2 The district court likewise concluded Lambros could
not evade AEDPA’s limitations on successive § 2255 motions by creatively
captioning his petition, in the alternative, as a request for a writ of audita querela.
This court cannot improve upon the reasoning of the district court as set out
in its orders dated May 17, 2013 and July 1, 2013. Accordingly, this court
AFFIRMS the district court’s order of dismissal for substantially the reasons set
out in those thorough orders. 3
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
(...continued)
provided for in 28 U.S.C. § 2255.”).
2
The record in this case makes clear Lambros is attempting to use § 2241 to
take an end-run around the Eighth Circuit’s consistent denial of his requests for
relief under § 2255. As aptly recognized by the district court, Lambros has not
offered a single citation to any authority supporting the notion § 2241 can be used
in this fashion.
3
Lambros’s request for a certificate of appealability (“COA”) is denied as
moot. A federal prisoner does not need a COA to appeal the dismissal of a
§ 2241 habeas petition.
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