                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   January 23, 2009
                                  TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 EL-SAYYID NOSAIR,

          Petitioner-Appellant,
 v.                                                      No. 08-1270
 WARDEN RON WILEY,                              (D.C. No. 07-cv-02596-ZLW)
                                                         (D. Colo.)
          Respondent-Appellee.



                             ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, 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, submitted without oral argument.

      El-Sayyid Nosair, a federal prisoner appearing pro se, appeals from a

district court order denying his 28 U.S.C. § 2241 application for writ of habeas


      *
        This order and judgment is not binding precedent, except under the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.
corpus. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                          I.

      Nosair is a federal prisoner incarcerated at the Administrative Maximum

United States Penitentiary in Florence, Colorado (ADX). In January 1996, Nosair

was convicted in the United States District Court for the Southern District of New

York of seditious conspiracy, two counts of attempted murder and one count of

murder in furtherance of a racketeering enterprise, attempted murder of a federal

officer, three counts of use of a firearm in relation to a crime of violence, and

possession of a firearm with an obliterated serial number. See United States v.

Rahman, 189 F.3d 88, 103-04 (2d Cir. 1999) (affirming Nosair’s convictions and

those of his co-conspirators). Nosair had previously been convicted in New York

state court on related weapons charges. Id. at 105 n.3.

      Nosair initiated this action on December 13, 2007, by filing a motion for

appointment of counsel. Nosair’s motion indicated that in April 2007 he

“discovered,” by way of a “new published book” regarding his criminal case,

“new evidence” indicating that “the prosecutors had committed a sever[e] Brady

violation . . . .” ROA, Vol. 1, Doc. 2 at 2. The motion further indicated that

Nosair desired the appointment of counsel because he “need[ed] to make an

investigation about the new discovery” and, in turn, wished “to file a ‘habeas

corpus’ against the Warden of ADX . . . .” Id. at 3.

      On January 9, 2008, Nosair filed a pro se application for a writ of habeas

                                          -2-
corpus pursuant to 28 U.S.C. § 2241. In his application, Nosair alleged that he

was “being held in custody unlawfully because [his] conviction and sentence were

obtained by the unconstitutional failure of the prosecution to disclose . . .

evidence favorable to the defendant . . . .” Id., Doc. 4 at 3.

      On January 11, 2008, the magistrate judge assigned to the case issued an

order directing Nosair to show cause why his application should not be denied.

The magistrate judge noted that “Nosair [wa]s challenging the validity of his

conviction and sentence in the United States District Court for the Southern

District of New York,” and that the exclusive remedy for testing the validity of a

judgment and sentence, unless shown to be inadequate or ineffective, was a

motion filed pursuant to 28 U.S.C. § 2255 in the court of conviction. Id., Doc. 5

at 2. In his response to the show cause order, Nosair alleged that he was

“assert[ing] two claims of prosecutorial misconduct based on newly discovered

evidence that the government allegedly failed to disclose to the defense that

would demonstrate his actual innocence, by withholding information and by

keeping a major witness from the state and federal trials and from the defense, in

both cases . . . .” Id., Doc. 14 at 1 (emphasis in original). Nosair further alleged

that “[c]omplete relief c[ould] not be accomplished . . . pursuant to 28 U.S.C. §

2254 nor § 2255.” Id. at 2 (emphasis in original). More specifically, he alleged

that “[r]equiring [him] to seek relief in two actions in two courts, none of which

could grant [him] complete relief, represent[ed] an inadequate and ineffective

                                          -3-
avenue for judicial redress.” Id. Nosair explained that he “filed his habeas

petition in order that he could get granted complete relief from his state and

federal convictions and sentences together since the claims he [wa]s raising

relate[d] to both his state and federal cases.” Id.

      On June 3, 2008, the district court denied Nosair’s application and

dismissed the action. In doing so, the district court explained the differences

between “a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion

pursuant to 28 U.S.C. § 2255 . . . .” Id., Doc. 15 at 2. In turn, the district court

concluded that the proper avenue for Nosair to challenge his federal convictions

was to file a § 2255 motion in the United States District Court for the Southern

District of New York. Relatedly, the district court concluded that Nosair had

“fail[ed] to demonstrate that the remedy available to him pursuant to § 2255 in

the sentencing court [wa]s inadequate or ineffective.” Id. at 4. Lastly, the district

court noted that Nosair “d[id] not assert any claims in this action challenging the

validity of [his] state court conviction,” and that, in any event, he could “not

challenge the validity of his state court conviction” by way of “a habeas corpus

action pursuant to § 2241.” Id. at 3.

      On June 18, 2008, Nosair filed a motion for relief from judgment pursuant

to Rule 60(b). The district court denied that motion on July 2, 2008. Nosair has

since filed a timely notice of appeal.




                                          -4-
                                          II.

      In his appeal, Nosair argues that the district court, in denying him relief

pursuant to 28 U.S.C. § 2241 and dismissing his action, “incorrectly decided the

facts and failed to consider important legal grounds for relief.” Aplt. Br. at 2.

We review de novo the district court’s denial of Nosair’s § 2241 application. See

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

      After reviewing the record on appeal and Nosair’s appellate pleadings, we

conclude that the district court was correct in denying his § 2241 application. A §

2241 application is not the proper vehicle for challenging the validity of Nosair’s

federal or state convictions. See Bradshaw, 86 F.3d at 166 (noting that “[a]

petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its

validity”). Rather, as the district court noted, Nosair must challenge his federal

convictions by way of a 28 U.S.C. § 2255 motion filed with the sentencing court.

As for Nosair’s challenge to his state convictions, he must first, as he admits he

has failed to do, exhaust his state court remedies. See Magar v. Parker, 490 F.3d

816, 818 (10th Cir. 2007). Only then may he seek federal habeas relief from

those convictions pursuant to 28 U.S.C. § 2254. Finally, we agree with the

district court that Nosair has failed to establish that the remedies available to him

via §§ 2254 and 2255 are inadequate or ineffective. See Caravalho v. Pugh, 177

F.3d 1177, 1178 (10th Cir. 1999) (“Courts have found a remedy under 28 U.S.C.

§ 2255 to be inadequate or ineffective only in extremely limited circumstances.”).

                                          -5-
      The judgment of the district court is AFFIRMED. Nosair’s declaration for

entry of default is DENIED. Nosair’s declaration for entry of default and motion

for leave to proceed in forma pauperis are DENIED.



                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




                                       -6-
