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

                               FOR THE TENTH CIRCUIT                          July 17, 2018
                           _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 ERIC ADAMS,

          Petitioner - Appellant,
                                                             No. 18-1233
 v.                                                 (D.C. No. 1:18-CV-00847-LTB)
                                                               (D. Colo.)
 KLINE, Warden,

          Respondent - Appellant.
                         _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

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

      In April 2018, Petitioner Eric Adams, a federal prisoner in custody of the Bureau

of Prisons (BOP) in Florence, Colorado, filed a pro se application for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241 in the District of Colorado. In this application,

he sought an injunction requiring BOP employees to wear gloves while serving food

trays, arguing their failure to do so violated the Eighth Amendment. In response, a

magistrate judge ordered Petitioner to amend his application, explaining challenges to

conditions of confinement must be brought in a civil rights action, not a habeas corpus

action.



      *
         This order and judgment is not binding precedent, except under the doctrines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.
      In May 2018, Petitioner filed an amended application pursuant to § 2241

asserting his sentencing court, the U.S. District Court for the Eastern District of New

York, lacked subject matter jurisdiction over his criminal case. The district court

denied this amended application because it was clear Petitioner was challenging his

conviction and sentence, not the execution of his sentence. Such a challenge could

only be brought in the sentencing court under 28 U.S.C. § 2255, unless the remedy

available under § 2255 was inadequate or ineffective. Because Petitioner failed to

show § 2255 was inadequate or ineffective to test the legality of his detention, the

district court dismissed his amended application. The court also certified pursuant to

28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and thus any

appeal could not be taken in forma pauperis. The district court entered judgment, and

Petitioner filed a timely notice of appeal.

      On appeal, Petitioner argues § 2255 is inadequate and ineffective to argue his

lack of subject matter jurisdiction claim. He argues he would have to file his § 2255

motion in the Eastern District of New York, but because the Eastern District of New

York would not have jurisdiction over the warden of the prison in Colorado, the warden

would not be able to stand as respondent to his § 2255 motion. But “there is no

respondent involved in the [§ 2255] motion (unlike habeas) and the United States

Attorney, as prosecutor in the case in question, is the most appropriate one to defend

the judgment and oppose the motion.” Rules Governing Section 2255 Proceedings,

Rule 4 advisory committee’s note. Therefore, the Eastern District of New York need

not have jurisdiction over the warden of the prison in Colorado. We, for the fourth

                                              2
time, reject Petitioner’s claim that a § 2255 motion is inadequate and ineffective to

argue his lack of subject matter jurisdiction claim. See Adams v. Davis, 433 F. App’x

673 (10th Cir. 2011) (unpublished); Adams v. Wiley, 290 F. App’x 156 (10th Cir. 2008)

(unpublished); Adams v. Holt, No. 01-1274 (10th Cir. Dec. 6, 2001) (unpublished).

The district court’s order is AFFIRMED. Petitioner’s motion to proceed in forma

pauperis is DENIED.


                                          Entered for the Court


                                          Bobby R. Baldock
                                          Circuit Judge




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