                                                                           F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           APR 3 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 ROBERT GELZER,

               Petitioner-Appellant,
                                                       No. 02-3324
          v.                                   (D.C. No. 99-CV-3132-RDR)
                                                       (D. Kansas)
 N. L. CONNORS, Warden,

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HOLLOWAY and McKAY, Circuit
Judges.



      After examining the 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); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      This is a pro se 28 U.S.C. § 2241 federal prisoner appeal. On January 28,

1994, Mr. Gelzer was convicted in the Eastern District of New York of conspiracy


      *
       This order and judgment is not binding precedent, except under the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.
to commit armed postal robbery, armed postal robbery, possession of a firearm

during a crime of violence, possession of a firearm by a convicted felon, and

possession of a firearm with an obliterated serial number. Mr. Gelzer’s

conviction was affirmed by the Second Circuit, but his case was remanded for

reconsideration of sentencing issues. See United States v. Gelzer, 50 F.3d 1133

(2d Cir. 1995). After re-sentencing, Mr. Gelzer’s sentence was affirmed. See

United States v. Gelzer, 104 F.3d 354 (2d Cir. 1996). Mr. Gelzer subsequently

filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §

2255. The motion was denied by the district court, and the denial was affirmed

by the Second Circuit.

      Mr. Gelzer is incarcerated at USP-Leavenworth, Kansas. In his § 2241

petition, Mr. Gelzer asked for relief from his conviction of using or carrying a

firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). He

alleged that (1) the jury instructions did not properly define the “use” and “carry”

of a firearm in light of Bailey v. United States, 516 U.S. 137 (1995), and (2) there

was insufficient evidence regarding his possession of a firearm during a crime of

violence.

      The magistrate judge correctly noted that Mr. Gelzer was attacking the

validity of his conviction and sentence rather than the execution of his sentence as

is proper under § 2241. Review of a conviction and sentence is precluded under §


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2241 unless the remedy under § 2255 is “inadequate or ineffective.” 28 U.S.C. §

2255. Therefore, the magistrate judge proceeded to review the § 2241 petition in

light of Bailey, which the Supreme Court decided after Mr. Gelzer filed his

original § 2255 motion.

      The magistrate judge correctly found that Bailey did not apply to Mr.

Gelzer’s case. On collateral review, Bailey claims require actual innocence of the

crime in order for relief to be granted. United States v. Leopard, 170 F.3d 1013,

1016 (10th Cir. 1999). “Bailey claims are foreclosed if the evidence was legally

sufficient to convict for carry . . . or use.” Id. (citations omitted). The magistrate

judge stated that “[a]n examination of the circumstances surrounding petitioner’s

crime reveals that the Bailey decision did not render his conduct non-criminal

because a firearm was actively employed in the robbery . . . .” Rec., Doc. 20, at

4. Consequently, the remedy under § 2255 was not inadequate or ineffective, and

the magistrate judge recommended that the § 2241 petition be denied. After

consideration of Mr. Gelzer’s objections to the report and recommendation, the

district court adopted it in its entirety and dismissed the petition for writ of

habeas corpus.

      We have carefully reviewed Mr. Gelzer’s brief, the district court’s

disposition, and the record on appeal. For substantially the same reasons as set

forth by the district court in its Order of July 31, 2002, adopting the magistrate


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judge’s recommendation, we agree with the disposition of the district court.

      AFFIRMED.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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