                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 10 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ROBERT D. GRAY,

          Petitioner - Appellant,
                                                       No. 02-3288
 v.
                                                D.C. No. 01-CV-3446-RDR
                                                       (D. Kansas)
 N. L. CONNOR, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      Robert D. Gray, an inmate at the United States Penitentiary in

Leavenworth, Kansas, filed a petition for habeas corpus pursuant to 28 U.S.C.

§ 2241 in the District Court for the District of Kansas. Gray wishes to

retroactively challenge his sentence in light of the United States Supreme Court’s

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).



      *
        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order and judgment is not binding precedent, except under the doctrines of law of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.
      The district court dismissed Gray’s petition as improperly filed under §

2241. For substantially the same reasons as stated by the district court in its

Order of July 1, 2002, dismissing the appeal, we AFFIRM the dismissal.

      Petitioner also moves this court to grant summary reversal due to the

Respondent N.L. Connor’s failure to file a response brief. We deny this motion

because the Federal Rules of Appellate Procedure provide no such remedy for the

failure to file a response brief. See Fed. R. App. P. 31 (consequence of appellee’s

failure to file response brief is waiver of right to oral argument without the

court’s permission).


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




                                         -2-
