                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    January 12, 2011
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 ANDRE J. TWITTY, a/k/a ANDRE
 TWITTY, a/k/a A.J. TWITTY,

              Petitioner-Appellant,
                                                         No. 10-1409
 v.                                            (D.C. No. 1:10-CV-01676-ZLW)
                                                         (D. of Colo.)
 BLAKE DAVIS; CHARLES
 DANIELS, named as BLAKE
 DANIELS,

              Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Andre J. Twitty, a federal prisoner proceeding pro se, 1 appeals the denial of

his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Twitty


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Twitty is proceeding pro se, we construe his filings liberally.
See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
also submits a motion for release pending the outcome of this appeal. Having

jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s decision and

DENY Twitty’s motion for release.

                                  I. Background

      In 1999, following a jury trial in the Northern District of Georgia, Twitty

was convicted of wilfully communicating a bomb threat via telephone and

threatening federal law enforcement officers and their immediate family members.

He was sentenced to 180 months’ imprisonment and three years of supervised

release. The Eleventh Circuit affirmed his conviction and sentence. United

States v. Twitty, 31 F. App’x 934 (11th Cir. 2002), cert. denied 535 U.S. 1029

(2002).

      In 2002 Twitty applied for a writ of habeas corpus under 28 U.S.C. § 2255,

which the district court denied. The Eleventh Circuit subsequently denied a

certificate of appealability. Twitty v. United States, No. 04-12805 (11th Cir.

April 25, 2005).

      Since then, Twitty has filed eleven petitions challenging his conviction and

sentence in the District of Colorado, including the instant claim. 2 He has pursued

      2
        See Twitty v. Davis, No. 10-cv-01356 (D. Colo. June 22, 2010); Twitty v.
Daniels, No. 10-cv-00888-ZLW (D. Colo. Apr. 27, 2010); Twitty v. Davis, No.
10-cv-000634 (D. Colo. Mar. 31, 2010), appeal filed, No. 10-1198 (10th Cir. May
3, 2010); Twitty v. Davis, No. 09-cv-02538-ZLW (D. Colo. Jan. 11, 2010); Twitty
v. Wiley, No. 09-cv-00906-ZLW (D. Colo. June 24, 2009); Twitty v. Wiley, No.
08-cv-02717-ZLW (D. Colo. Mar. 25, 2009); Twitty v. Wiley, No. 08-cv-02823-
                                                                   (continued...)

                                        -2-
many of these petitions on appeal. Each petition has been unsuccessful.

      The district court dismissed the petition at issue here on the grounds that

§ 2241 is not a means of challenging the validity of a judgment. The court

explained that “a petition under § 2241 attacks the execution of a sentence rather

than its validity,” and that “[t]he exclusive remedy for testing the validity of a

judgment and sentence” is a § 2255 petition filed in the district where the

sentence was imposed. R. Vol. 1 at 27 (quotations omitted). The district court

also denied Twitty’s motion to appeal in forma pauperis.

                                   II. Discussion

      A. The District Court’s Denial

      We review de novo the district court’s denial of a § 2241 petition.

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

      After careful review of Twitty’s brief on appeal, his habeas petition, and

the disposition below, we affirm the dismissal for substantially the same reasons

set forth in Twitty v. Daniels, No. 10-1198 (10th Cir. Jan.12, 2011).

      B. Motion for Release


      2
       (...continued)
BNB (D. Colo. Feb. 13, 2009), aff’d, No. 09-1107 (10th Cir. June 19, 2009);
Twitty v. Wiley, No. 08-cv-02119-ZLW (D. Colo. Nov. 17, 2008), aff’d, No. 09-
1008 (10th Cir. June 19, 2009); Twitty v. Wiley, No. 07-cv-02441-ZLW (D. Colo.
Mar. 3, 2008), appeal dismissed, No. 08-1118 (10th Cir. June 11, 2008), appeal
dismissed, No. 08-1277 (10th Cir. Oct. 29, 2008); Twitty v. Wiley, No. 06-cv-
00177-ZLW (D. Colo. Mar. 29, 2006), aff’d, No. 06-1234 (10th Cir. July 17,
2006), cert. denied No. 06-6290, 549 U.S. 968 (Oct. 10, 2006).

                                          -3-
      Because we find Twitty’s appeal is without merit, we also deny his motion

for release pending appeal as moot.

      C. Filing Restrictions

      “The right of access to the courts is neither absolute nor unconditional, and

there is no constitutional right of access to the courts to prosecute an action that is

frivolous or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315

(10th Cir. 1994) (per curiam) (quotation and alteration omitted). “[Where] a

party has engaged in a pattern of litigation activity which is manifestly abusive,

restrictions are appropriate.” Id. (quotation omitted). Because Twitty’s frequent

and frivolous filings are abusive, we concluded in a related appeal that filing

restrictions are necessary. See Twitty v. Daniels, No. 10-1198 (10th Cir. Jan.12,

2011). We will not repeat our discussion of the restrictions here, but only remind

Twitty that these restrictions will take effect twenty days from the date of the

order or, if he objects within ten days, after the court has ruled on his objections.

                                  III. Conclusion

       Accordingly, we AFFIRM the district court’s denial of Twitty’s habeas

petition. We also DENY Twitty’s request for leave to proceed on appeal in forma

pauperis as his opening brief does not make a reasoned non-frivolous argument in

support of his claim.

                                                     Entered for the Court,

                                                     Per Curiam

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