                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS                   July 17, 2013
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 GARRON HAYNES,

              Petitioner - Appellant,
                                                         No. 12-3215
 v.                                            (D.C. No. 5:12-CV-03149-RDR)
                                                          (D. Kan.)
 CLAUDE MAYE,

              Respondent - Appellee.



                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Garron Haynes is a federal prisoner currently serving a sentence imposed

by the United States District Court for the Western District of Missouri.

Proceeding pro se, 1 he filed the instant 28 U.S.C. § 2241 petition in the United

      *
             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.

      This order and judgment is not binding precedent except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
            We construe Mr. Haynes’s filings liberally because he is proceeding
pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
States District Court for the District of Kansas, “the district court for the district

wherein [he] is in custody.” 28 U.S.C. § 2241(d). The district court dismissed

Mr. Haynes’s petition for lack of jurisdiction, finding that his assertions of error

were not cognizable in a § 2241 petition. Mr. Haynes appeals from that dismissal

and seeks to proceed in forma pauperis (“IFP”). We affirm the district court’s

judgment and deny Mr. Haynes’s motion to proceed IFP.

                                           I

      Mr. Haynes pleaded guilty to a drug offense in the United States District

Court for the Western District of Missouri (the “sentencing court”). The

sentencing court imposed a sentencing enhancement pursuant to 21 U.S.C.

§ 841(b). In his § 2241 petition, filed in the United States District Court for the

District of Kansas, Mr. Haynes asserts that the government failed to file the

necessary information in the sentencing court under 21 U.S.C. § 851 prior to the

entry of his guilty plea. Because of this alleged failure, Mr. Haynes contends that

the sentencing court was “without jurisdiction” to impose an increased term of

188 months’ imprisonment under § 841’s “career offender’s provision.” R. at 5

(Pet. for Writ of Habeas Corpus, filed June 25, 2012).

      The district court dismissed Mr. Haynes’s petition, without prejudice,

finding that Mr. Haynes sought to challenge the legality of his sentence, and not

its execution; thus, reasoned the court, his action was not cognizable under

§ 2241. Mr. Haynes appeals from this dismissal.

                                           2
                                          II

      Our review of the district court’s dismissal of Mr. Haynes’s § 2241 petition

is de novo. See Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012).

Because Mr. Haynes is a federal prisoner seeking to proceed under § 2241, he

“does not need a certificate of appealability to appeal [the] district court’s denial

of [his] petition.” Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); see

McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (“[A]

certificate of appealability under [AEDPA] is not required in order to appeal a

final order in a proceeding under 28 U.S.C. § 2241.” (citation omitted)).

                                         III

      Mr. Haynes raises two assertions of error on appeal: first, that the district

court erred because it concluded that 28 U.S.C. § 2255 was his only remedy, even

though (as Mr. Haynes sees it) § 2255 is ineffective due to the one-year

limitations period, see 28 U.S.C. § 2255(f); and second, that the district court

erred because it did not address the substance of his purportedly jurisdictional

claim—viz., his claim that the sentencing court lacked jurisdiction to impose an

enhanced sentence under § 841 because the government failed to file the requisite

information under § 851. Because we conclude that the district court was correct

to dismiss Mr. Haynes’s petition, we need only opine on his first argument.

      The district court was correct to dismiss Mr. Haynes’s § 2241 petition

because Mr. Haynes seeks to challenge the legality of his sentence, and not the

                                          3
execution of his sentence; accordingly, § 2241 is not the appropriate remedy,

§ 2255 is. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (“A 28

U.S.C. § 2255 petition attacks the legality of detention,” while “[a] petition under

28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity.”).

Moreover, to the extent that Mr. Haynes is attempting to raise a savings-clause

argument of the type that we addressed in Abernathy v. Wandes, 713 F.3d 538

(10th Cir. 2013), and Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), his

argument still fails; Mr. Haynes has not demonstrated that his challenge could not

have been tested in a § 2255 motion. See Abernathy, 713 F.3d at 547 (“In Prost,

we set forth our test [to determine if a petitioner could properly invoke

§ 2255(e)’s savings clause]: we ask ‘whether a petitioner’s argument challenging

the legality of his detention could have been tested in an initial § 2255 motion. If

the answer is yes, then the petitioner may not resort to the savings clause and

§ 2241.’” (quoting Prost, 636 F.3d at 584)).

      In particular, we reject Mr. Haynes’s sole argument for why § 2255 is

ineffective—that the one-year limitations period has expired. 2 See Aplt. Opening


      2
             Mr. Haynes also argues that § 2255 is not the exclusive remedy for
challenging the legality of his sentence. However, such an argument is clearly
foreclosed by our precedent, absent some showing that § 2255 is inadequate or
ineffective. See Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (“A
§ 2255 motion . . . is generally the exclusive remedy for a federal prisoner
seeking to ‘attack[ ] the legality of detention, and must be filed in the district that
imposed the sentence.’” (alteration in original) (quoting Bradshaw, 86 F.3d at
                                                                         (continued...)

                                          4
Br. at 3. The fact that any § 2255 motion that Mr. Haynes might bring would be

time-barred does not render the § 2255 remedy itself inadequate or ineffective.

See Bradshaw, 86 F.3d at 166 (“Failure to obtain relief under [§] 2255 does not

establish that the remedy so provided is either inadequate or ineffective.” (quoting

Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963)) (internal quotation

marks omitted)); cf. Brace, 634 F.3d at 1170 (“In Prost, this court held that the

fact that § 2255 bars a defendant from bringing a statutory interpretation

argument in a second § 2255 motion does not render § 2255 an ineffective or

inadequate remedy.”); Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010)

(explaining that “[o]nly in rare instances will § 2255 fail as an adequate or

effective remedy to challenge a conviction or the sentence imposed”).

       The district court thus properly dismissed Mr. Haynes’s § 2241 petition.

We deny Mr. Haynes’s motion to proceed IFP and affirm the judgment of the

district court.



                                              Entered for the Court


                                              JEROME A. HOLMES
                                              Circuit Judge



       2
       (...continued)
166)); see also Prost, 636 F.3d at 581. And Mr. Haynes cannot establish that
§ 2255 is inadequate or ineffective.

                                          5
