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

                                                                     December 13, 2005
                     UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                       Clerk of Court


 ROBERT L. RICH,

          Petitioner - Appellant,
                                                        No. 05-6171
 v.
                                                  (D.C. No. CIV-05-65-C)
                                                       (W.D. Okla.)
 T. C. PETERSON, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Appellant Robert L. Rich, a federal inmate appearing pro se, seeks leave to

proceed in forma pauperis in appealing the denial of his 28 U.S.C. § 2241 habeas

petition. Because Mr. Rich has failed to present a “reasoned, nonfrivolous

argument on the law and facts” in support of the issue he raises on appeal,




      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we deny his motion

to proceed in forma pauperis and dismiss this appeal.

I. Background

      In 1989, Mr. Rich was convicted in the United States District Court for the

Eastern District of Louisiana of engaging in a continuing criminal enterprise in

violation of 21 U.S.C. § 848. On direct appeal, the United States Court of

Appeals for the Fifth Circuit affirmed his conviction. Mr. Rich unsuccessfully

sought relief under 28 U.S.C. § 2255, and the Fifth Circuit denied his requests to

file successive § 2255 motions. See United States v. Rich, 141 F.3d 550, 550–51

(5th Cir. 1998).

      Mr. Rich then filed a petition pursuant to 28 U.S.C. § 2241 in the Western

District of Oklahoma, where he is incarcerated. The petition alleges that during

his trial the prosecution failed to disclose exculpatory evidence and knowingly

used perjured testimony, and that there was a variance between the indictment and

the facts on which the jury based its verdict. The district court accepted a

magistrate judge’s determination that relief was unavailable under § 2241 and

recommendation that the action be dismissed.

      On appeal, Mr. Rich contends that the district court’s decision both failed

to enforce the plain language of §§ 2255 and 2241 and applied those sections so

as to “work[] an unconstitutional suspension of the writ of habeas corpus.” He


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asks that we vacate the decision of the district court and remand for a hearing on

the merits.

II. Discussion

      Reviewing de novo the district court’s denial of Mr. Rich’s habeas petition,

we agree that he is not entitled to relief under § 2241. Bradshaw v. Story, 86 F.3d

164, 166 (10th Cir. 1996). Generally, “[a] petition under 28 U.S.C. § 2241

attacks the execution of a sentence rather than its validity,” whereas “[a] 28

U.S.C. § 2255 petition attacks the legality of detention.” Id. Here, Mr. Rich’s

arguments are challenges to the validity of his sentence, which he may only make

under § 2241 if he meets his burden of showing that § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255; see Bradshaw,

86 F.3d at 167.

      Mr. Rich fails to meet his burden. His only claim is that § 2255 is

inadequate because he cannot file a § 2255 motion without prior authorization

from the Fifth Circuit, which has “already denied Petitioner the authorization to

file such a motion.” However, we have clearly held that a habeas petitioner’s

inability to obtain leave to file a second or successive § 2255 petition does not

make that remedy inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177,

1179 (10th Cir. 1999) (“The mere fact that [a habeas petitioner] is precluded from

filing a second § 2255 petition does not establish that the remedy in § 2255 is


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inadequate.”). Therefore, Mr. Rich has not met his burden and is not entitled to

proceed under § 2241.

      Mr. Rich also argues that the district court’s decision “effectively suspends

the writ of habeas corpus” in violation of the Constitution. See U.S. Const. art. I,

§ 9, cl. 2. This argument also fails. Section 2255’s limitation on second or

successive habeas petitions does not violate the Suspension Clause. Felker v.

Turpin, 518 U.S. 651, 664 (1996). Moreover, “the substitution of a collateral

remedy [such as § 2255] which is neither inadequate nor ineffective to test the

legality of a person’s detention does not constitute a suspension of the writ of

habeas corpus.” Swain v. Pressley, 430 U.S. 372, 381 (1977). Because Mr. Rich

has not shown that the remedy of § 2255 is inadequate or ineffective, we reject

his suspension argument.

III. Conclusion

      Mr. Rich has failed to present a “reasoned, nonfrivolous argument” in

support of his contention that his § 2255 remedy is inadequate or ineffective. See

DeBardeleben, 937 F.2d at 505. We therefore DENY his motion to proceed in

forma pauperis and DISMISS this appeal.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge

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