                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             SEP 21 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 BRAD ELZIE,

           Petitioner-Appellant,
 v.                                                       No. 99-1002
 MICHAEL V. PUGH,                                    (D.C. No. 98-D-1909)
                                                           (D.Colo.)
           Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before ANDERSON, KELLY 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Brad Elzie appeals the district court’s dismissal of his

application for relief under 28 U.S.C. § 2241 and the court’s denial of his motion

for reconsideration of that dismissal. We affirm.


       This order and judgment is not binding precedent, except under the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.
      Petitioner was convicted in 1995 in the Eastern District of Louisiana of

attempt to possess with intent to distribute cocaine hydrochloride, and his

conviction was affirmed in   United States v. Elzie , 71 F.3d 878 (5th Cir. 1995)

(table). His subsequent 28 U.S.C. § 2255 petition was denied in     United States v.

Elzie , 1996 WL 711508 (E.D. La. Dec. 9, 1996). In August 1998, petitioner filed

a 28 U.S.C. § 2241 application in the District of Colorado, asserting (1) failure of

the grand jury in its constitutional duties; (2) a deficient complaint because an

attachment was not properly identified; (3) failure to file 21 U.S.C. § 851

information before trial; (4) failure of grand jury indictment to charge a federal

offense; (5) speedy trial violations; (6) insufficient evidence to prove all essential

elements of crime; (7) prosecutorial misconduct; (8) erroneous jury instructions;

(9) error in voir dire; (10) erroneous admission of prior crimes evidence; (11)

government misconduct; (12) judicial prejudice; (13) sentence was based upon

error in PSR; (14) double jeopardy violation and violation of excessive fines

clause; (15) conviction was unconstitutional; and (16) ineffective assistance of

trial and appellate counsel. The district court dismissed petitioner’s application,

finding it was not properly filed under § 2241.

      We review the district court’s denial of petitioner’s habeas petition de

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

a notice of appeal only from the district court’s order of dismissal and its order


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denying his motion for reconsideration. His allegations of error in the district

court’s refusal to recuse and failure to take judicial notice are not properly before

us on appeal. See Scaramucci v. Dresser Indus., Inc.      , 427 F.2d 1309, 1318 (10th

Cir. 1970).

       The district court found petitioner’s motion was not proper under 28 U.S.C.

§ 2241. The purpose of a § 2241 application for habeas corpus is to attack the

execution of a sentence and it must be filed in the district where the prisoner is

confined. Bradshaw , 86 F.3d at 166. A 28 U.S.C. § 2255 petition attacks the

validity of a judgment and the legality of detention, and it must be filed in the

district that imposed the sentence.      Id. A review of petitioner’s application

reveals he alleges errors in his conviction that are the proper subject for a § 2255

motion.

       Although petitioner’s allegations are proper under § 2255, he could

properly file a § 2241 application if the § 2255 remedy was inadequate or

ineffective to test the legality of his detention.   Id. Petitioner previously was

denied relief in the sentencing court under § 2255.

       Petitioner argues he is not authorized to file for relief under § 2255.

Although successive § 2255 motions are restricted, they are not prohibited.         See

28 U.S.C. § 2244(b)(2) (allowing successive motions if prisoner shows new rule

of constitutional law or newly discovered evidence). Further, the mere fact that


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petitioner is precluded from filing a second § 2255 petition does not establish that

the remedy is inadequate.     See Caravalho v. Pugh , 177 F.3d 1177, 1179 (10th Cir.

1999). Petitioner has an adequate § 2255 remedy. The district court did not err in

dismissing his § 2241 application.

         Petitioner asserts the district court erred in denying his request to appeal in

forma pauperis, thereby requiring him to pay the appellate filing fee. Petitioner

alleges 28 U.S.C. § 1915 does not apply to § 2241 proceedings and Fed. R. App.

P. 24(a) is unconstitutional. Although an appeal of a § 2241 proceeding is not a

civil action for purposes of § 1915 (a)(2) and (b), petitioner still must comply

with the good faith requirement of § 1915(a)(3) and Fed. R. App. P. 24(a).       See

McIntosh v. United States Parole Comm’n       , 115 F.3d 809, 812 (10th Cir. 1997).

The district court found petitioner failed to show the existence of a nonfrivolous

argument on the law and facts in support of his issues raised on appeal. We

agree.

         AFFIRMED. Petitioner’s motion to proceed on appeal in forma pauperis is

DENIED. The mandate shall issue forthwith.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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