                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 1, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT
                           __________________________

 MARCUS L. FREEMAN,

          Petitioner-Appellant,
                                                        No. 10-1330
 v.                                       (D.Ct. No. 1:09-CV-02493-DME-MJW)
                                                         (D. Colo.)
 BLAKE R. DAVIS, Warden,

          Respondent-Appellee.
                       ______________________________

                             ORDER AND JUDGMENT *


Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.



      Appellant Marcus L. Freeman, a pro se litigant and federal inmate, appeals

the district court’s dismissal of his application for a writ of habeas corpus

      *
         This order and judgment is not binding precedent except under the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.
pursuant to 28 U.S.C. § 2241. He also seeks leave to proceed on appeal without

prepayment of costs and fees (in forma pauperis). Construing his pro se

application liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we deny

the motion to proceed in forma pauperis and dismiss his appeal as frivolous.



                         I. Factual and Procedural Background

         In 1996, Mr. Freeman was convicted in a federal court in Texas on two

drug counts and received a mandatory life sentence which was upheld on appeal

and on his motion for rehearing en banc. See United States v. Freeman, 164 F.3d

243 (5 th Cir.), reh’g denied, 172 F.3d 871 (5 th Cir. 1999). By his own admission,

he has “since ... filed several motion [sic] to attack his sentence,” which were all

filed in a Texas federal court, including: (1) at least one unsuccessful motion for

post-conviction relief pursuant to 28 U.S.C. § 2255; 1 (2) at least one unsuccessful

motion to file a successive § 2255 motion; (3) an unsuccessful motion to attack

his sentence pursuant to 18 U.S.C. § 3582(c)(2); 2 and (4) an unsuccessful motion

brought under Federal Rule of Criminal Procedure 52(b). 3 Mr. Freeman’s



         1
             See Freeman v. United States, 2001 WL 492401 (N.D. Tex. May 3,
2001).
         2
        See United States v. Freeman, 2010 WL 4272919 (5 th Cir. Oct. 26, 2010)
(per curiam).
         3
        See United States v. Freeman, 158 F.App’x 568, 2005 WL 3427507 (5 th
Cir. Dec. 14, 2005) (per curiam).

                                          -2-
multiple attacks on his sentence have prompted the Fifth Circuit to warn him that

“any further repetitious or frivolous attempts to circumvent statutory restrictions

on filing second or successive 28 U.S.C. § 2255 motions to vacate, whether

pursued by him pro se or with the assistance of any other person (including any

attorney) ... may result in the imposition of sanctions against him,” and “may

include dismissal, monetary sanctions, and restrictions on his ability to file

pleadings in this court ....” Freeman, 2005 WL 3427507, at *1.



      Mr. Freeman is currently incarcerated at a federal facility in Florence,

Colorado. On November 12, 2009, he brought the instant application in a

Colorado federal court, seeking a writ of habeas corpus pursuant to § 2241 and

claiming errors in his presentence report led to his life sentence and caused the

Bureau of Prisons to classify him as a high-risk inmate. More specifically, Mr.

Freeman claimed certain portions of his presentence report, pertaining in part to

his involvement in the conspiracy, criminal history points, and drug quantities,

were inaccurate, unreliable, untrue, unsupported by reliable evidence, and

improperly used to calculate his sentence. As to his claim such errors improperly

caused his classification as a high-risk inmate, he simply alleged “[t]he Federal

Bureau of Prisons is using that same information for the purpose of making

decision [sic] adverse to [him] that effect [sic] security, custody, and

classification in the execution of the sentence.”

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      The district court adopted the federal magistrate judge’s recommendation

Mr. Freeman’s application be denied and dismissed with prejudice. In so doing, it

agreed with the magistrate judge’s conclusion that even though Mr. Freeman

labeled the action as a § 2241 motion, it was “a thinly-veiled collateral attack on

the validity of [his] sentence,” which should have been brought as a successive

motion under § 2255.



      Undeterred, Mr. Freeman sought an order for reconsideration, which the

district court considered as a motion to alter or amend the judgment under Federal

Rule of Civil Procedure 59(e) and denied. On February 10, 2011, the district

court also denied Mr. Freeman’s motion for leave to proceed in forma pauperis,

stating his appeal was not taken in good faith because Mr. Freeman has not shown

the existence of a reasoned, non-frivolous argument on the law and facts in

support of the issues raised on appeal.



                                   II. Discussion

      On appeal, Mr. Freeman makes the same or similar arguments raised in his

§ 2241 application dismissed by the district court. He continues to claim his

presentence report contained factual errors, including information he was a

member of a conspiracy during the time alleged, which improperly led to the

imposition of his life sentence. He also contends none of the errors surfaced until

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2007 when he was incarcerated and finally allowed to review his presentence

report and addendum. Mr. Freeman again seeks leave to appeal the district

court’s dismissal of his pleading without prepayment of filing fees pursuant to 28

U.S.C. § 1915(a)(1).



      Because Mr. Freeman is a federal prisoner (rather than a state prisoner)

proceeding under § 2241, he does not need a certificate of appealability. See

Curtis v. Chester, 626 F.3d 540, 542 n.1 (10 th Cir. 2010); McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 810 n.1 (10 th Cir. 1997). We review de novo the legal

conclusions of a district court’s denial of habeas corpus relief. See Rogers v.

Gibson, 173 F.3d 1278, 1282 (10 th Cir. 1999). “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,” whereas 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 (10 th Cir. 2000)

(quoting Bradshaw v. Story, 86 F.3d 164, 166 (10 th Cir. 1996)). When a

defendant is challenging his conviction and sentence, and not the execution

thereof, such challenges must be brought pursuant to § 2255 unless this “remedy

by motion is inadequate or ineffective.” 28 U.S.C. § 2255(e); Bradshaw, 86 F.3d

at 166.




                                          -5-
      While we construe a pro se litigant’s pleadings liberally, see Garza v.

Davis, 596 F.3d 1198, 1201 n.2 (10 th Cir. 2010), the fact Mr. Freeman is a pro se

litigant does not prohibit this court from dismissing his appeal as frivolous, see

Haworth v. Royal, 347 F.3d 1189, 1192 (10 th Cir. 2003). A claim or appeal is

frivolous under § 1915 if it “lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989); McIntosh, 115 F.3d at 812-13.

We have held “[t]he right of access to the courts is neither absolute nor

unconditional, and there is no constitutional right of access to the courts to

prosecute an action that is frivolous or malicious.” Winslow v. Hunter (In re

Winslow), 17 F.3d 314, 315 (10 th Cir. 1994) (per curiam) (internal quotation

marks omitted).



      Applying our standard of review and the applicable legal principles, we

agree with the district court’s characterization of Mr. Freeman’s § 2241

application as “a thinly-veiled collateral attack on the validity of [his] sentence,”

which should have been brought as a successive motion under § 2255. Our

review of Mr. Freeman’s appellate brief and the record on appeal clearly shows

he is attempting to vacate, set aside, or correct his sentence or otherwise

challenge his conviction improperly through § 2241, rather than § 2255, given his

previous lack of success in the Texas federal court in attacking his sentence under

§ 2255 and the Fifth Circuit’s admonition concerning his repetitious or frivolous

                                          -6-
attempts to circumvent statutory restrictions on filing second or successive § 2255

motions. In other words, Mr. Freeman is attempting to both obtain a favorable

result on an issue the Fifth Circuit has repeatedly held meritless and skirt its prior

warning concerning any future requests to file a § 2255 motion.



      Nevertheless, 28 U.S.C. § 2255 remains the proper avenue for Mr.

Freeman’s post-conviction challenge. “Where a statute specifically addresses the

particular issue at hand,” as § 2255 does here, “it is that authority ... that is

controlling.” Carlisle v. United States, 517 U.S. 416, 429 (1996). Thus, any

attempt to file a successive motion under § 2255 must be filed in the federal

district court that imposed the sentence, which, in this case, is in Texas. The fact

Mr. Freeman has not been successful in his prior § 2255 motion and request to

file a successive § 2255 motion does not mean a procedural avenue has not been

available to him but simply that his arguments lacked merit or he failed to meet

the criteria required for authorization to pursue such filings.



      It is also apparent the Fifth Circuit determined Mr. Freeman’s repetitious

and frivolous filings, for the purpose of circumventing statutory restrictions on

filing second or successive § 2255 motions, constituted abusive filing practices

and unnecessary expenditure of judicial resources. His instant § 2241 application

and appeal thereof in this court are similarly meant to circumvent such

                                           -7-
restrictions and are patently frivolous, an abuse of the judicial process, and the

cause of unnecessary expenditures of judicial resources on a matter which has

been definitively adjudicated and deemed meritless by that court.



      We, like the Fifth Circuit, possess inherent authority “to regulate the

activities of abusive litigants by imposing carefully tailored restrictions under the

appropriate circumstances.” Tripati v. Beaman, 878 F.2d 351, 352 (10 th Cir.

1989) (per curiam). We have long held that where a party has engaged in a

pattern of litigation activity which is manifestly abusive, restrictions are

appropriate, but only after notice and an opportunity to respond are given. See

Werner v. Utah, 32 F.3d 1446, 1447-48 (10 th Cir. 1994); In re Winslow, 17 F.3d at

315. We may impose filing restrictions based on our inherent power to regulate

federal dockets, promote judicial efficiency, and deter frivolous filings. See Van

Sickle v. Holloway, 791 F.2d 1431, 1437 (10 th Cir. 1986). Moreover, Rule 38 of

the Federal Rules of Appellate Procedure allows this court to award damages to

the Appellee as a sanction for a frivolous appeal. See generally Stafford v. United

States, 208 F.3d 1177, 1179 (10 th Cir. 2000).



      Accordingly, we caution Mr. Freeman future frivolous appeals on this or

any other matter may result in summary disposition without discussion and/or an

order requiring him to show cause why this court should not impose both

                                          -8-
appellate filing restrictions and sanctions. We further deny Mr. Freeman’s motion

for leave to proceed in forma pauperis in the instant action based on the

frivolousness of his appeal and abuse of our judicial resources. We caution him

we may also limit permission to proceed in forma pauperis in the future,

regardless of his financial ability to pay such costs and fees. See In re McDonald,

489 U.S. 180, 183-85 (1989) (limiting petitioner from proceeding in forma

pauperis based on petitioner’s abuse of judicial resources); Thompson v. Gibson,

289 F.3d 1218, 1222-23 (10 th Cir. 2002) (explaining dismissal of frivolous action

or appeal constitutes a “strike” and if three strikes are accrued, the litigant may

no longer proceed in forma pauperis in any civil action filed in federal court

unless he is in imminent danger of physical injury). Again, the fact Mr. Freeman

is a pro se litigant does not prohibit this court from such summary disposition,

sanctions, or other limitations on frivolous or abusive filings. See Haworth, 347

F.3d at 1192.



                                   III. Conclusion

      For the foregoing reasons, we DENY Mr. Freeman’s motion to proceed on

appeal without prepayment of costs or fees and DISMISS his appeal as frivolous.

For the same reasons, we further DENY Mr. Freeman’s request to file




                                         -9-
supplemental authorities, his motion to supplement the record on appeal, and his

motion to file out of time an addendum to his opening brief.

                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




                                        -10-
