                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                           December 4, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 JAMES D. RUSSIAN,

       Petitioner - Appellant,

 v.                                                           No. 19-3194
                                                    (D.C. No. 5:19-CV-03007-EFM)
 DON HUDSON, Warden, USP-                                     (D. Kan.)
 Leavenworth,

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT
                        _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      James D. Russian, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2241 petition for lack of statutory jurisdiction.

Because Russian’s § 2241 petition is a misclassified § 2255 petition, we affirm.

                                   BACKGROUND

      Ever since a jury convicted him on multiple drug and firearm charges, Russian

has repeatedly tried to overturn his convictions. So far, he has filed three direct



      
       We have substituted the current warden of Leavenworth, Don Hudson, for the
former warden of Leavenworth, Nicole English, pursuant to Fed. R. App. P. 43(c)(2).

      
         This order and judgment is not binding precedent, except under the doctrines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.
appeals with our circuit and three postconviction motions for relief with the district

court.

         Although Russian has not managed to overturn his convictions, he has had

some lesser victories. In his first appeal, Russian argued that the district court erred

by denying his motion to suppress, by improperly calculating his sentencing-

guideline range, and by imposing a sentence above the statutory maximum. United

States v. Russian (Russian I), 848 F.3d 1239, 1243–44 (10th Cir. 2017). A panel of

this court affirmed the district court’s denial of his motion to suppress but reversed

and remanded on its sentencing determination. Id. at 1247–50.

         On remand, the district court reduced Russian’s sentence from 137 months’

imprisonment to 101 months’ imprisonment, with two years of supervised release to

follow. One condition of Russian’s supervised release required him to “successfully

participate in and successfully complete an approved program for substance

abuse . . . as directed by the Probation Office.” United States v. Russian (Russian II),

737 F. App’x 360, 363 (10th Cir. 2018) (unpublished), cert. denied, 139 S. Ct. 616

(2018).

         Russian appealed a second time, arguing (among other things) that the district

court had unlawfully delegated to the probation office the ability to impose

punishment. Id. at 368. We agreed, vacated the substance-abuse condition, and

remanded “for the sole purpose of considering whether to reimpose this condition in

compliance with Article III of the Constitution.” Id. On remand a second time, the

district court removed the challenged supervised-release condition altogether.

                                            2
      Russian appealed a third time in United States v. Russian (Russian III), No.

18-3173 (10th Cir. appeal docketed August 13, 2018).1 Although the district court

had eliminated the substance-abuse-program condition, Russian argued that the court

had also erred by not granting the additional relief he sought at the resentencing

hearing: that the “case be dismissed and that [Russian] be set to liberty.” Br. of

Appellee at 21, Russian III, No. 18-3173 (10th Cir. appeal docketed August 13,

2018). That matter remains pending before a different panel of this court.

      Addressing Russian’s collateral efforts, we note that in October 2015 he filed a

§ 2255 petition. The district court denied the petition without prejudice, reasoning

that it should not consider the petition while Russian’s direct appeals were pending.

Two years later, Russian filed a § 2241 petition. The district court denied that

petition without prejudice, holding that it was a mislabeled § 2255 petition. In

January 2019, Russian filed a second § 2241 petition based on double-jeopardy

grounds, and the district court dismissed it without prejudice because, again, Russian

had mislabeled his petition. Russian’s second § 2241 petition is the subject of the

current appeal. We exercise appellate jurisdiction under 28 U.S.C. § 1291.




      1
         When we reference facts contained in litigation documents from Russian’s
other appeals that are not in the record before us, we will take judicial notice of those
facts. Fed. R. Evid. 201(a)–(d); St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins.
Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate
circumstances, may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to
matters at issue.” (citations omitted)).
                                            3
                                     DISCUSSION

       We review de novo the district court’s dismissal of Russian’s § 2241 petition.

See Abernathy v. Wandes, 713 F.3d 538, 544 (10th Cir. 2013) (citing Brace v. United

States, 634 F.3d 1167, 1169 (10th Cir. 2011)). Because Russian is proceeding pro se,

we review his pleading liberally. United States v. Pinson, 584 F.3d 972, 975 (10th

Cir. 2009) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Even

construing his § 2241 petition liberally, we do not read it to seek relief that is

obtainable by such a petition.2

       A § 2241 petition “attacks the execution of a sentence rather than its

validity . . . .” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citing United

States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986)). A § 2255 petition, on the other

hand, challenges “the legality of detention . . . .” Id. (citing Barkan v. United States,

341 F.2d 95, 96 (10th Cir. 1965)). Thus, § 2255 is “[t]he exclusive remedy for testing

the validity of a [federal] judgment and sentence, unless it is inadequate or

ineffective[.]” Id. (internal quotation marks omitted) (quoting Johnson v. Taylor, 347

F.2d 365, 366 (10th Cir. 1965)). Section 2255 is inadequate or ineffective if its

savings clause, § 2255(e), applies. Abernathy, 713 F.3d at 541. To test whether the

savings clause applies, we ask if “a petitioner’s argument challenging the legality of

his detention could have been tested in an initial § 2255 motion. If the answer is yes,



       2
        Russian does not need a certificate of appealability to appeal a final order
denying § 2241 relief. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1
(10th Cir. 1997).
                                            4
then the petitioner may not resort to the savings clause and § 2241.” Prost v.

Anderson, 636 F.3d 578, 584 (10th Cir. 2011).

       Here, Russian claims that he is “currently being held on multiplicitous

sentences.” R. at 3. That is so because, according to Russian, he was convicted and

sentenced in violation of the Double Jeopardy Clause. To cure that alleged

constitutional violation, Russian asks “the Court to comply with the Double Jeopardy

Clause and the Caselaw of the courts cited . . . and to vacate the underlying

convictions, as well as the multiplicitous sentences based upon them, thereby

restoring [Russian’s] natural liberties.” R. at 9.

       Because Russian seeks to overturn his “underlying convictions” and

“multiplicitous sentences” on double-jeopardy grounds, he challenges the validity of

his imprisonment, not its execution. United States v. Furman, 112 F.3d 435, 438

(10th Cir. 1997) (listing a double-jeopardy objection as a challenge to a conviction’s

validity); see also Benton v. Maryland, 395 U.S. 784, 796 (1969) (“The validity of

petitioner’s larceny conviction must be judged . . . under this Court’s interpretations

of the Fifth Amendment double jeopardy provision.”). So, unless Russian can satisfy

the savings clause by showing he could not have challenged the validity of his

imprisonment in an initial § 2255 petition, his § 2241 petition is invalid. Yet in

Furman we held not only that double-jeopardy objections are permissible in § 2255




                                             5
petitions challenging postconviction confinement,3 but also that they are

“appropriately left to pursuit under § 2255.” 112 F.3d at 438 (citations omitted).

       Hence Russian’s double-jeopardy challenge is appropriately left to pursuit

under § 2255. In light of ripeness issues caused by collateral challenges during the

pendency of a direct appeal, § 2255 may not be able to presently deliver the relief

that Russian seeks. See United States v. Scott, 124 F.3d 1328, 1330 (10th Cir. 1997).

But those ripeness problems are immaterial to whether § 2255 is inadequate or

ineffective. Williams v. United States, 323 F.2d 672, 673–74 (10th Cir. 1963)

(“Failure to obtain relief under § 2255 does not establish that the remedy so provided

is either inadequate or ineffective.” (internal quotation marks and citations omitted)).

Because Russian’s double-jeopardy objection should be considered under § 2255, the

district court correctly concluded that it lacked statutory jurisdiction to consider

Russian’s § 2241 petition. Abernathy, 713 F.3d at 557 (“[W]hen a federal petitioner

fails to establish that he has satisfied § 2255(e)’s savings clause test—thus,

precluding him from proceeding under § 2241—the court lacks statutory jurisdiction

to hear his habeas claims.”).




       3
         Section 2241 can be the proper mechanism for a double-jeopardy objection to
pretrial detention. See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007)
(“We . . . hold that § 2241 is the proper avenue by which to challenge pretrial
detention, including when such challenges are based on double jeopardy grounds.”).
But Russian brings his petition as a convicted prisoner to “vacate the underlying
convictions . . . .” R. at 9. Thus, Russian is not a pretrial detainee; he is “[a] prisoner
in custody” moving “the court . . . to vacate, set aside or correct the sentence.” 28
U.S.C. § 2255(a).
                                            6
      The district court also declined to recharacterize Russian’s § 2241 petition as a

§ 2255 petition. Russian’s direct appeal is still pending, and we have held that

“[a]bsent extraordinary circumstances, the orderly administration of criminal justice

precludes a district court from considering a § 2255 motion while review of the direct

appeal is still pending.” Scott, 124 F.3d at 1330 (internal quotation marks omitted)

(quoting United States v. Cook, 997 F.2d 1312, 1318–19 (10th Cir. 1993)). Although

we affirmed Russian’s convictions in Russian I, and the scope of remand was limited

to the issue of the substance-abuse condition in Russian II, Russian now seeks

reversal of his convictions in Russian III. If Russian is successful, he could be set

free, dispensing of any need for the district court to consider such a recharacterized

petition. Thus, we agree that the district court had no responsibility to transform

Russian’s § 2241 petition into a presently unreviewable, and perhaps eventually

moot, § 2255 petition.

                                    CONCLUSION

      We affirm the district court’s dismissal of Russian’s § 2241 petition.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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