                                                                                FILED
                                                                    United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          June 10, 2015
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
LEIGHTON FAY,

     Petitioner - Appellant,

v.                                                         No. 15-3035
                                                 (D.C. No. 5:14-CV-03148-RDR)
CLAUDE MAYE, Warden,                                        (D. Kan.)

     Respondent - Appellee.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Leighton Fay appeals the district court’s dismissal of his 28 U.S.C. § 2241

petition. We affirm.

                                          I

      Fay has filed numerous actions and petitions with this and other courts and the

factual background of this case is unchanged from the background detailed in Fay v.

Chester, 413 F. App’x 23 (10th Cir. 2011) (unpublished); Fay v. United States, 389

F. App’x 802 (10th Cir. 2010) (unpublished); United States v. Fay, No. CR 81-

      *
        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
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with Fed. R.
App. P. 32.1 and 10th Cir. R. 32.1.
30007-RAL, 2014 WL 129555 (D.S.D. Jan. 13, 2014) (unpublished); and United

States v. Fay, No. CR 81-30007-RAL, 2013 WL 3480897 (D.S.D. July 10, 2013)

(unpublished). Briefly, in 1981, Fay was convicted of multiple counts of assault in

the U.S. District Court for the District of South Dakota. He was released from

custody in 2005. In 2007, the Parole Commission determined that Fay had violated

his parole and he was returned to custody.

      In August 2014, Fay filed the petition at bar, raising numerous allegations that

the district court determined were challenges to his conviction that he either already

raised, or should have brought in his prior § 2255 petitions. These allegations

include that he was charged with a multiplicity of counts, was not present during his

resentencing, was improperly targeted by the government for political reasons, and

had ineffective assistance of counsel. Fay also challenged the actions of the Parole

Commission, claiming that his parole was improperly revoked. The district court

determined that Fay failed to support these claims with sufficient factual allegations

to show a constitutional violation.

                                          II

      On appeal, Fay renews several of the challenges to his conviction that were

dismissed by the district court, including his absence during resentencing and the

multiplicity of counts.1 We review the district court’s dismissal of a § 2241 petition

de novo. Abernathy v. Wandes, 713 F.3d 538, 544 (10th Cir. 2013). A § 2255


      1
       We construe Fay’s pro se filings liberally. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
                                          -2-
petition, not a § 2241 petition, is “generally the exclusive remedy” available to a

federal prisoner who challenges the “legality of detention.” Brace v. United States,

634 F.3d 1167, 1169 (10th Cir. 2011). In contrast, a § 2241 petition may typically be

used only to attack “the execution of a sentence rather than its validity.” Id.

(quotation omitted). A § 2255 petition is properly brought in the sentencing

jurisdiction. § 2255(a).

      We agree with the district court that Fay’s claims relating to his sentence and

resentencing should have been brought as a § 2255 petition in the U.S. District Court

for the District of South Dakota. Fay has not explained why he could not have raised

these arguments in the proper forum. To the extent that Fay challenges the district

court’s decisions pertaining to his conditions of confinement and execution of his

sentence, we agree that Fay has failed to support his claims with sufficient factual

allegations to show a federal constitutional violation.

      Fay raises a number of other issues on appeal that were not raised before the

district court, including alleged depravations of good time credits and violations of

the Thirteenth Amendment. He has not articulated a compelling reason for us to

depart from “the general rule that a federal appellate court does not consider an issue

not passed upon below.” Walker v. Maher (In re Walker), 959 F.2d 894, 896 (10th

Cir. 1992) (quotation omitted). To the extent that Fay’s challenge to the Major

Crimes Act, 18 U.S.C. § 1153, is grounded on an assertion that we lack jurisdiction,

we note that the issue was squarely resolved in Chester, 413 F. App’x at 26 (citing



                                           -3-
United States v. Kagama, 118 U.S. 375 (1886)), and we see no reason to depart from

that holding.

                                        III

      The judgment of the district court is AFFIRMED. Fay’s motion to proceed in

forma pauperis is GRANTED.


                                         Entered for the Court


                                         Carlos F. Lucero
                                         Circuit Judge




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