                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                     PUBLISH
                                                                        APR 27 1999
                  UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




ERNEST CARAVALHO,
                                                       No. 99-1001
             Petitioner-Appellant,                     No. 99-1038
                                                       No. 99-1112
v.

MICHAEL PUGH, Warden,

             Respondent-Appellee.




                  Appeal from the United States District Court
                          for the District of Colorado
                             (D.C. No. 98-D-1752)


Submitted on the Briefs:

Ernest Caravalho, pro se.


Before TACHA, McKAY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.


      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.

      In these consolidated appeals, petitioner Ernest Caravalho challenges the

following three rulings of the district court: (1) the denial of Caravalho’s 28

U.S.C. § 2241 habeas corpus petition; (2) the denial of Caravalho’s Motion for

Judge to Voluntarily Withdraw; and (3) the denial of Caravalho’s motion to

proceed on appeal in forma pauperis. Because Caravalho has not demonstrated “a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” this court denies Caravalho leave to proceed on appeal without

prepayment of fees and dismisses his appeals.

      Each of the three appeals in this case arise out of the filing of Caravalho’s

§ 2241 petition. In that petition, Caravalho noted that he was convicted in 1991

in the District of Hawaii of cultivating in excess of 1000 marijuana plants and

that his conviction was affirmed by the Ninth Circuit in 1993. Caravalho further

noted that he had filed a previous 28 U.S.C. § 2255 petition in the District of

Hawaii, which in 1996 vacated part of Caravalho’s conviction and reduced his

sentence by sixty months.

      In the instant § 2241 petition, Caravalho raised eight claims attacking the

validity of his underlying conviction. In response, the district court issued a

Order to Show Cause. In its show cause order, the district court directed


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Caravalho to “show cause in writing . . . why the instant 28 U.S.C. § 2241 habeas

corpus application should not be denied because [Caravalho] has an adequate and

effective remedy under 28 U.S.C. § 2255 in the United States District Court for

the District of Hawaii.” In response to the show cause order, Caravalho argued

that § 2255 was an inadequate remedy because the statute-of-limitations and

successive-writ provisions of the AEDPA barred the filing of a second § 2255

petition. See 28 U.S.C. § 2244(a) (second or successive writs); id. § 2244(d)

(statute of limitations). In light of Caravalho’s response to the show cause order,

the district court concluded that Caravalho’s § 2241 petition must be denied.

According to the district court,

             The purposes of an application for a writ of habeas corpus
      pursuant to 28 U.S.C. § 2241 and a motion pursuant to 28 U.S.C.
      § 2255 are distinct and well established. “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.”
      Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). “A 28 U.S.C.
      § 2255 petition attacks the legality of detention . . . and must be filed
      in the district that imposed the sentence.” Id. (citation omitted).
      “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 (10th Cir. 1965)
      (per curiam). A habeas corpus application pursuant to 28 U.S.C.
      § 2241 “is not an additional, alternative, or supplemental remedy, to
      the relief afforded by motion in the sentencing court under § 2255.”
      Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per
      curiam), cert. denied, 377 U.S. 980 (1964). “The exclusive remedy
      for testing the validity of a judgment and sentence, unless it is
      inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”
      Id.

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             Courts have found a remedy under 28 U.S.C. § 2255 to be
      inadequate or ineffective only in extremely limited circumstances.
      See, e.g., Spaulding v. Taylor 336 F.2d 192, 193 (10th Cr. 1964)
      (§ 2255 remedy ineffective when the original sentencing court is
      abolished); Stirone v. Markley, 345 F.2d 473, 475 (7th Cir.)
      (suggesting that § 2255 remedy might be ineffective when the
      sentencing court refuses to consider the § 2255 petition altogether or
      when the court delays inordinately consideration of the petition)
      (dictum), cert. denied, 382 U.S. 829 (1965); Cohen v. United States,
      593 F.2d 766, 771 n.12 (6th Cr. 1979) (noting that § 2255 remedy is
      ineffective when petitioner is sentenced by three courts, none of
      which could grant complete relief) (dictum). None of these
      circumstances is applicable to [Caravalho] in this action.
             Furthermore, as noted above, 28 U.S.C. § 2255 is the exclusive
      remedy for a federal prisoner attacking the legality of his detention.
      That [Caravalho] may be barred from filing a second or successive
      motion pursuant to § 2255 in the sentencing count does not establish
      that the remedy provided in § 2255 is inadequate or ineffective. See
      Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997)
      (§ 2255’s substantive and procedural barriers by themselves do not
      establish that § 2255 is inadequate or ineffective); In re Dorsainvil,
      119 F.3d 245, 251 (3d Cir. 1997) (§ 2255 is not inadequate or
      ineffective merely because the petitioner is unable to meet the
      stringent gatekeeping requirements).

      In response to the district court’s denial of his § 2241 habeas petition,

Caravalho filed a Motion for Judge to Voluntarily Withdraw. In what can only be

charitably described as a lengthy diatribe, Caravalho contended that the Judge

Daniel should recuse himself on the basis of bias and prejudice. In particular,

Caravalho contended that Judge Daniel’s prejudice was apparent from the fact

that he had wrongfully dismissed Caravalho’s § 2241 petition. Judge Daniel

denied the motion to withdraw, noting that it was based on nothing more than

disagreement with the district court’s adverse rulings. Furthermore, the district

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court denied Caravalho leave to proceed in forma pauperis on appeal, holding as

follows:

             I have examined the file and I have determined that leave to
      proceed in forma pauperis on appeal must be denied. Pursuant to
      Rule 24(a) of the Federal Rules of Appellate Procedure, I find that
      this appeal is not taken in good faith. Because [Caravalho] is
      attacking the validity of his conviction and has an adequate and
      effective remedy under 28 U.S.C. § 2255 in the sentencing court, he
      has not shown the existence of a reasoned, nonfrivolous argument on
      the law and facts in support of the issues raised on appeal. See
      DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10 th Cir. 1991).

      This court has carefully reviewed Caravalho’s briefs and contentions on

appeal, the district court’s orders, and the entire record on appeal. That review

demonstrates that Caravalho has not made a reasoned, nonfrivolous argument in

law or fact to support his petition. In particular, we agree with the district court

that the mere fact Caravalho is precluded from filing a second § 2255 petition

does not establish that the remedy in § 2255 is inadequate. See United States v.

Bryant, No. 98-1179, 1999 WL 704673 at *2 (10 th Cir. Oct. 2, 1998) (unpublished

disposition). Furthermore, mere disagreement with the merits of a district court

decision, which decision was clearly correct, does not support recusal of the

judge. Accordingly, this court DENIES Caravalho permission to proceed on

appeal in forma pauperis and DISMISSES these appeals.




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