                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               MAR 7 1997
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 ARTHUR FORTUNE ENGLISH, JR.,

               Petitioner - Appellant,                       No. 96-1357
          v.                                                 D. Colorado
 J. W. BOOKER, Warden; FEDERAL                          (D.C. No. 96-D-554)
 PRISON CAMP - FLORENCE; UNITED
 STATES OF AMERICA,

               Respondents - Appellees.


                              ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.




      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); 10th Cir. R. 34.1.9. 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        This order and judgment is not binding precedent, except under the doctrines of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.
       Appellant Arthur Fortune English, Jr., appeals the district court’s order dismissing

without prejudice his petition for a writ of habeas corpus under 28 U.S.C. § 2241. The

district court, adopting the magistrate judge’s recommendation, dismissed the petition for

lack of jurisdiction holding petitioner was required to seek relief under 28 U.S.C. § 2255

in the sentencing court. We affirm.

       On August 7, 1995, Mr. English pleaded guilty to wire fraud and aiding and

abetting in violation of 18 U.S.C. §§ 1342, 1343, and was sentenced in the U.S. District

Court for the Northern District of Texas to a term of twenty-seven months imprisonment,

three years supervised release, and $1,876.00 in restitution. He is serving the term of

imprisonment at the Federal Prison Camp at Florence, Colorado. On March 8, 1996, he

brought this action in the U.S. District Court for the District of Colorado,1 urging the

court to dismiss his Texas conviction because the Texas court lacked jurisdiction. He

filed another pleading on April 29, restating his original arguments, and seeking

“immediate release and to vacate, set aside and dismiss the commitments, judgments and

sentences.” R. Vol. I at Tab 10.

       The magistrate judge first ordered the government to show cause why the petition

should not be granted, but upon further review, vacated that order and ordered English to

show cause why his petition should not be dismissed for lack of jurisdiction. English


       1
        English entitled his pleading “1st Amendment Right Petition for Title 28 Section
2241 A Writ of Habeas Corpus under Common Law Demand to Dismiss for Lack of
Jurisdiction.” R. Vol. I at Tab 1.

                                             -2-
filed an interlocutory appeal to this court from the show cause order, and we eventually

dismissed the appeal. See Appellee’s Br. Attachments 1-3. Subsequently, English filed

various pleadings including “Request to Correct Error by Petitioner,” “Request to Take

Judicial Notice,” and “Petition for Writ of Mandamus.” The magistrate and district

judges held these pleadings unresponsive to the show cause order.2 English then filed

two other pleadings, seeking an evidentiary hearing, default judgment and judicial notice.

He also filed a “Petition Seeking Writ of Certiorari or Writ of Mandamus,” which the

district court treated as a timely objection to the magistrate judge’s recommendation. On

July 16, 1996, the district court issued its order adopting the magistrate judge’s

recommendation and dismissing English’s petition without prejudice. R. Vol. I at 23.

English filed his notice of appeal July 29, 1996.3

       We review de novo the district court’s denial of English’s habeas petition. See

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). In his appellate brief, English


       2
        There is a document in the record on appeal entitled, “Request for Judicial Notice
and Response to Order to Show Cause,” which states that section 2255 was inadequate
because it did not address the issue of “one who is foreign to the jurisdiction of the United
States government,” and urges the court to treat his application as a common law writ of
habeas corpus. This document does not appear to have been filed with the district court,
the magistrate judge does not refer to it in his recommendation, and it is therefore not
properly before us on appeal. Even if it were properly before us, it does not adequately
respond to the availability of relief under section 2255.
       3
        A certificate of appealability under 28 U.S.C. § 2253 as amended by § 102 of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214, is not required in this case because English appeals a final order dismissing a
§ 2241 petition. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

                                             -3-
primarily argues that “there was simply no jurisdiction of any type to try defendant in any

Federal Court whatsoever.” Appellant’s Br. at 28. He also cursorily argues that he is

entitled to a common law writ of habeas corpus, and “Congress cannot mandate that

petitioner cannot proceed with common law Writ of Habeas Corpus but must utilize 28

U.S.C. § 2255 as it violates first amendment rights as well as suspension clause.” Id. at

12.

       Section 2255 prohibits the district court from entertaining an application for writ

of habeas corpus on behalf of a prisoner who is authorized to apply for relief under

section 2255 “if it appears that the applicant has failed to apply for relief, by motion, to

the court which sentenced him, or that such court has denied him relief, unless it also

appears that the remedy by motion is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255; see also Bradshaw, 86 F.3d at 166. If section 2255 is

inadequate or ineffective, then a prisoner may proceed with a petition for writ of habeas

corpus under 28 U.S.C. § 2241. See Williams v. United States, 323 F.2d 672, 673 (10th

Cir. 1963).

       Mr. English attacks the jurisdiction of the sentencing court, the U.S. District Court

for the Northern District of Texas, but has not applied to that court for relief from his

sentence. Furthermore, nothing in the record leads us to conclude that the remedy under

section 2255 is inadequate or ineffective. Construing his pro se appeal liberally as we




                                              -4-
must, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), Mr. English has failed to

meet the requirements of section 2255.

       Mr. English’s statements that section 2255 is unconstitutional are conclusory and

unsupported, and this court is not required to fashion arguments for him. United States v.

Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). However, Supreme Court and Tenth Circuit

decisions have upheld section 2255, and found that it does not infringe a prisoner’s right

to attack collaterally a conviction. See United States v. Hayman, 342 U.S. 205, 218-19

(1952) (discussing history of section 2255 and finding no indication it intended to

impinge prisoners’ rights of collateral attack upon their convictions); Kinnell v. Crouse,

384 F.2d 811, 812 (10th Cir. 1967) (citing cases which reject argument that section 2255

impermissibly suspends the writ of habeas corpus). Moreover, the district court

dismissed Mr. English’s petition without prejudice, and he has every opportunity to

pursue his rights before the proper district court.

       For the foregoing reasons, and those ably set forth in the magistrate judge’s

recommendation and district court’s order, we AFFIRM the district court’s order

dismissing without prejudice his petition for writ of habeas corpus under 28 U.S.C.

§ 2241.4

                                                      ENTERED FOR THE COURT



       4
        English’s “Motion for Mandatory and Prohibitory Injunction at Common Law,”
filed November 4, 1996, is denied.

                                              -5-
      Stephen H. Anderson
      Circuit Judge




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