                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               JAN 6 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 DAVID J. FULLER,

               Petitioner - Appellant,                      No. 97-1277
          v.                                                D. Colorado
 UNITED STATES OF AMERICA,                             (D.C. No. 97-B-1058)

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before ANDERSON, MCKAY, and LUCERO, 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); 10th Cir. R. 34.1.9. This cause 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        This order and judgment is not binding precedent, except under the doctrines of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.
       David James Fuller appeals the district court’s order dismissing without

prejudice his petition for a writ of habeas corpus under 28 U.S.C. § 2241. 1 Mr.

Fuller essentially alleges in his petition and on appeal that his convictions in the

United States District Court for the Northern District of Iowa were void for lack

of jurisdiction. The magistrate judge recommended that the petition be dismissed

for lack of jurisdiction because Mr. Fuller should have sought relief under 28

U.S.C. § 2255 in the court that sentenced him, and the district court agreed.

       It is well established that § 2255 is the “exclusive remedy for testing the

validity of a judgment and sentence, unless it is inadequate or ineffective” and

that such an action must be brought in the district court which imposed the

sentence. Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see Bradshaw v.

Story, 86 F.3d 164, 166 (10th Cir. 1996). A petition under § 2241, on the other

hand, “attacks the execution of a sentence” and “is not an additional, alternative,

or supplemental remedy” to a § 2255 proceeding. Bradshaw, 86 F.3d at 166

(citations omitted). Mr. Fuller argues that § 2255 is insufficient because the

Constitution guarantees the right to pursue a writ of habeas corpus and does not

compel the use of § 2255. R., Doc. 3 at 9-11. The constitutionality of § 2255 has


       1
        We note that a certificate of appealability under the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), is not
required in order to appeal a final order in a proceeding under 28 U.S.C. § 2241. See
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997);
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

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long been established, see Sanders v. United States, 373 U.S. 1, 14 (1963);

Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963), and we find no

reason why proceeding under it in this case would be inadequate or ineffective.

      Accordingly, we GRANT Mr. Fuller’s motion to proceed in forma pauperis

and AFFIRM the district court’s dismissal of his § 2241 petition without

prejudice. See Bradshaw, 86 F.3d at 167.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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