                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 14, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ALLAN C. MUGAN,

      Petitioner - Appellant,

v.                                                          No. 16-1446
                                                   (D.C. No. 1:16-CV-01233-LTB)
DEBRA DENHAM,                                                 (D. Colo.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Allan C. Mugan, a federal prisoner, seeks to challenge his conviction and

sentence via a 28 U.S.C. § 2241 habeas corpus petition.1 But a § 2241 petition is not

the proper avenue for challenging the validity of a criminal conviction or sentence.

“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its

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


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Mugan is proceeding pro se, so we construe his pleadings liberally, but we do
not serve as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Anderson, 636 F.3d 578, 581 (10th Cir. 2011) (“Meanwhile, § 2241 petitions,

brought in the district where the prisoner is confined, are generally reserved for

complaints about the nature of a prisoner’s confinement, not the fact of his

confinement.”). A 28 U.S.C. § 2255 petition is the proper way for Mugan to attack

the validity of his detention, see Bradshaw, 86 F.3d at 166, but Mugan has already

unsuccessfully sought relief via § 2255, see United States v. Mugan, No. 3:07-cv-

03059-LRR (N.D. Iowa Mar. 29, 2010), appeal dismissed, No. 10-1808 (8th Cir.

Oct. 4, 2010). Mugan did not dispute this at the district court, instead arguing that his

§ 2241 petition should be allowed to proceed because his case meets the “extremely

limited circumstances,” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999)

(internal quotation omitted), in which the remedy provided by § 2255 “is inadequate

or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). To meet

those circumstances, Mugan has the burden to show that the arguments he makes in

his § 2241 petition could not have been raised in a § 2255 petition. See Prost, 636

F.3d at 584.

      The district court dismissed Mugan’s petition for lack of statutory jurisdiction

(and therefore without prejudice) because it found Mugan’s various reasons for the

inadequacy of § 2255 unpersuasive. Mugan argued that the test set forth in Prost is

overly restrictive and thus violates the Constitution’s Suspension Clause. See U.S.

Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may

require it.”). But the district court rightly noted that we have already rejected a

                                            2
similar claim. See Hale v. Fox, 829 F.3d 1162, 1176 (10th Cir. 2016). The district

court also found that Mugan was wrong in his assertion that the sentencing court had

failed to adjudicate his § 2255 petition and that Mugan was simply dissatisfied with

the result of that adjudication.

       Mugan also claimed that intervening law announced in Johnson v. United

States, 135 S. Ct. 2551 (2015), provides the basis for his § 2241 relief. But the

district court noted that, even if Johnson were helpful to Mugan, Johnson announced

a substantive rule with retroactive effect for collateral review and so Mugan could

have brought any claim based on Johnson in a second or successive § 2255 petition.

See 28 U.S.C. § 2255(h)(2). The district court was similarly unreceptive to Mugan’s

actual-innocence claim, as Mugan had presented no new evidence to support it. See

Haley, 829 F.3d at 1171.

       We agree with the district court on all these issues. Mugan’s appellate brief

does nothing to dissuade us. He adds little in the way of new argument, instead

merely reiterating the notion that Prost effectively violates the Suspension Clause

and stressing how difficult it is to access § 2241 to challenge the validity of a

sentence and conviction. That high bar is by design—not because of a conspiracy by

the “corrupt judiciary” to forestall justice, as Mugan sees it, Appellant Br. at 3, but

because § 2241 is not meant as a free repeat of the § 2255 process. Mugan had his

§ 2255 chance and he lost. Mugan argues that it was unfair for the same judge who

sentenced him to rule on his § 2255 motion. Putting aside that this is normal practice,

the decision of that judge was also reviewed by the Eighth Circuit, which dismissed

                                            3
the appeal. If, in a possible second or successive § 2255 petition, Mugan still believes

that the sentencing judge is biased against him, he can move to recuse her, but even

the existence of bias would not render the § 2255 remedy ineffective. Bradshaw, 86

F.3d at 167.

       We also deny Mugan in forma pauperis (ifp) status for this appeal. Mugan was

initially granted leave to proceed with ifp status in this action. But on appeal, the district

court denied him that status and certified that any appeal would not be in good faith. See

28 U.S.C. § 1915(a)(3). Nonetheless, Mugan appealed and filed a motion to proceed with

ifp status. Despite what the seemingly ironclad language of § 1915(a)(3) would indicate,

even a party who has been certified as not appealing in good faith can request ifp status

on appeal so long as he shows both a financial inability to pay and a reasoned,

nonfrivolous argument, and follows the procedure mandated by Fed. R. App. P. 24(a)(5).

Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078-79 (10th Cir. 2007).2 But

because Mugan has not demonstrated the existence of a reasoned, nonfrivolous argument,

we agree that he cannot proceed with ifp status.




       2
         “Upon its face, § 1915(a)(3) would appear to foreclose our consideration of
[a motion to proceed IFP]; its mandatory language denies the availability of an
appeal in forma pauperis upon the district court’s certification of a lack of good faith,
and it provides no escape hatch of appellate review or reconsideration. Federal Rule
of Appellate Procedure 24(a)(5), on the other hand, purports to expressly permit our
consideration of [such] a motion . . . . The palpable conflict between these provisions
is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact
that its most recent reenactment postdates that of § 1915(a)(3).” Rolland, 497 F.3d
at 1078.
                                               4
                                   CONCLUSION

      For the reasons stated, we affirm the dismissal of Mugan’s § 2241 petition for

lack of statutory jurisdiction (without prejudice), and deny Mugan ifp status.


                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




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