                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      July 8, 2008
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                      Clerk of Court



 ARTHUR D’AMARIO, III,

             Petitioner-Appellant,

 v.                                                    No. 08-1016
                                              (D.C. No. 1:07-CV-2425-ZLW)
 BLAKE R. DAVIS, Warden,                              (D. Colorado)

             Respondent-Appellee.


                          ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and GORSUCH, 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.

      Arthur D’Amario appeals the order and separate judgment entered by the

United States District Court for the District of Colorado denying his application

under 28 U.S.C. § 2241 for writ of habeas corpus. 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        This order and judgment is not binding precedent, except under the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 D’Amario was convicted in the United States District Court for

the District of New Jersey of threatening to kill a federal judge. He was

sentenced to 84 months’ imprisonment. See United States v. D’Amario, No. 06-

CR-112-PSD (D. N.J. Mar. 26, 2007). His criminal appeal is proceeding before

the United States Court of Appeals for the Third Circuit. See United States v.

D’Amario, appeal docketed, No. 07-1955 (3rd Cir. Apr. 3, 2007).

      Shortly after filing his criminal appeal, Petitioner filed a 28 U.S.C. § 2255

motion in the district court for the District of New Jersey raising claims based on

ineffective assistance of counsel. In a May 30, 2007 Order, the district court

denied the § 2255 motion, as premature, because of Petitioner’s criminal appeal

before the Third Circuit. Subsequently, the Third Circuit granted Petitioner’s

motion to voluntarily dismiss his civil appeal from the denial of his § 2255

motion. See D’Amario v. United States, No. 08-1606 (3rd Cir. May 30, 2007)

(unpublished order).

      In November 2007, while incarcerated at the Federal Correctional

Institution in Englewood, Colorado, Arthur D’Amario filed a § 2241 application

in the District of Colorado raising claims based on prosecutorial misconduct and

insufficient evidence. The District of Colorado denied the application,

concluding that the appropriate remedy was under § 2255 in the District of New

Jersey where Petitioner was convicted and sentenced, and not under § 2241 in the

District of Colorado. This appeal followed.

                                          2
      We review de novo the district court’s denial of a § 2241 application. See

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

      Upon review of the record and appellate brief, we conclude the district

court was correct in denying the § 2241 application. A motion under § 2255 in

the District of New Jersey is the exclusive remedy for Petitioner to challenge his

2007 conviction and sentence after the Third Circuit renders a decision in his

criminal appeal. The fact that a § 2255 motion in the District of New Jersey at

this time is premature does not establish that relief under § 2255 is inadequate or

ineffective.

      The district court’s January 4, 2008 Order and separate judgment are

AFFIRMED. The motion for leave to proceed in forma pauperis is DENIED.

The mandate shall issue forthwith.



                                       Entered for the Court,


                                       PER CURIAM




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