                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   August 11, 2015

                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court


 MICHAEL D. McCOY,

              Petitioner - Appellant,

 v.                                                      No. 15-3029
                                                         (D. Kansas)
 CLAUDE MAYE, Warden, USP                      (D.C. No. 5:14-CV-03104-RDR)
 Leavenworth,

              Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.



      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.

      Michael D. McCoy, a federal prisoner proceeding pro se, appeals from an

order of the United States District Court for the District of Kansas dismissing his


      *
        This order and judgment is not binding precedent except under the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.
28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court’s

order of dismissal.

      A federal jury in the Southern District of Indiana found McCoy guilty of

multiple counts of “robbery, armed robbery, and use of a firearm during a crime

of violence.” United States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993). The

district court sentenced McCoy to a term of imprisonment of 802 months. Id.

The Seventh Circuit affirmed. Id. at 497. Thereafter, McCoy filed in the

sentencing court a 28 U.S.C. § 2255 motion to vacate, set aside, or correct

sentence; the motion was denied in 1997. It does not appear McCoy appealed the

denial of his § 2255 motion to the Seventh Circuit.

      In June of 2014, while incarcerated at the Federal Correctional Institution

in Leavenworth, Kansas, McCoy filed the instant § 2241 petition in the United

States District Court for the District of Kansas. In his § 2241 petition, McCoy

attacked the validity of his convictions. In particular, he asserted the sentences he

received on the 18 U.S.C. § 924(c) firearm counts are inconsistent with the

Supreme Court’s recent decision in Alleyne v. United States, 133 S. Ct. 2151

(2013). The district court dismissed McCoy’s petition, concluding the proper

remedy was for him to seek permission from the Seventh Circuit to file a

successive § 2255 motion in the Southern District of Indiana. Bradshaw v. Story,

86 F.3d 164, 166 (10th Cir. 1996); 28 U.S.C. § 2255(h). McCoy appeals.

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      Upon de novo review of the record and McCoy’s appellate brief, this court

concludes the district court was correct in dismissing McCoy’s § 2241 petition. A

§ 2241 petition is not the proper means to raise the claims set out by McCoy.

Instead, unless it is inadequate or ineffective, a § 2255 motion in the Southern

District of Indiana is the exclusive remedy for McCoy to challenge his

convictions and sentence. Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965)

(“The exclusive remedy for testing the validity of a judgment and sentence, unless

it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”);

28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus in behalf of a

prisoner who is authorized to apply for relief by motion pursuant to this section,

shall not be entertained if it appears that the applicant has failed to apply for

relief, by motion, to the court which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.”). McCoy has not, however,

established the inadequacy or ineffectiveness of a § 2255 motion. The mere fact

McCoy may very well be precluded from filing a second or successive § 2255

motion in the sentencing court does not establish that statutory remedy is

inadequate or ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir.

1999). Accordingly, the district was correct to dismiss McCoy’s § 2241 petition.

      The order of the United States District Court for the District of Kansas

dismissing McCoy’s § 2241 petition for lack of jurisdiction is hereby

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AFFIRMED. Because McCoy failed to advance a “reasoned, nonfrivolous

argument” on appeal, his motion to proceed in this court in forma pauperis is

DENIED and he is ordered to immediately remit the full appellate filing fee.

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (holding that to be

entitled to proceed in forma pauperis, a movant must show, inter alia, “the

existence of a reasoned, nonfrivolous argument on the law and facts in support of

the issues raised on appeal”).

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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