                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        JAN 10 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 KENNY TAYLOR,

          Petitioner - Appellant,
                                                       No. 02-3298
 v.
                                                D.C. No. 01-CV-3439-RDR
                                                       (D. Kansas)
 MICKEY RAY, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      Petitioner Kenny Taylor files under § 2241 to challenge his federal

sentence as unconstitutional under Apprendi. In Apprendi, the Supreme Court

held that any factor that increases the penalty for a crime beyond the maximum

statutory penalty must be submitted to the jury and proven beyond a reasonable

doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Although the



      *
        After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
details of Taylor’s crime are not before us, it has been assumed by the district

court that, but for the fact that Taylor was sentenced long before Apprendi, the

rule in Apprendi would apply.

      Taylor has already filed two successive motions challenging his sentence

under § 2255, both which have been denied. His second § 2255 motion

challenged his sentence precisely on Apprendi grounds. It was rejected because

the rule in Apprendi may not be retroactively applied. United States v. Mora, 208

F.3d 228 (10th Cir. 2002).

      Motions under § 2241, such as the one Taylor now files, are generally

reserved to challenge the execution of a sentence rather than its validity.

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

attacking a sentence itself is under § 2255. 28 U.S.C. § 2255.

      Nonetheless, as the magistrate judge and the district court found, Taylor’s

motion could not prevail under either statute. It could not prevail under § 2255

because successive § 2255 motions are barred unless the petitioner can prove

actual innocence or the retroactive application of a new rule. See generally

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §

2255 (incorporating 28 U.S.C. § 2244). Taylor here makes no claim of actual

innocence and, as discussed above, the rule in Apprendi may not be applied

retroactively.


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      Taylor’s claim could also not prevail under § 2241. Claims under § 2241

may only be made when the statute is the litigant’s exclusive remedy. Here

Taylor’s claim is more properly brought under § 2255 because it challenges his

sentence rather than the conditions of his confinement. Bradshaw, 86 F.3d at 166

(finding that a petition under § 2241 is not “an additional, alternative, or

supplemental remedy to 28 U.S.C. § 2255”). The fact that Taylor has already

been denied relief under § 2255 is not a reason for finding that alternative statute

inadequate or ineffective as a remedy. Caravalho v. Pugh, 177 F.3d 1177, 1178

(10th Cir. 1999).

      For substantially the reasons stated by the magistrate judge and the district

court, we then AFFIRM the denial of Taylor’s § 2241 motion. In the alternative,

if his motion is construed as a successive petition under § 2255, we DENY Taylor

a certificate of appealability and DISMISS the appeal. Mr. Taylor’s motion to

proceed in forma pauperis is denied.


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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