                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     August 22, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court


 M ICHAEL KOKOSKI,

               Petitioner - A ppellant,          Nos. 05-6377 and 06-6045
          v.                                        (W . Dist. Oklahoma)
 DENNIS CALLAHAN, W arden,                        (D.C. No. 05-CV-808-C)

               Respondent - Appellee.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      M ichael Kokoski is incarcerated in W est Virginia serving sentences for a

1994 conviction for employing a person under age 18 to distribute lysergic acid

diethylamide (LSD ) and a subsequent conviction for escape from a federal

institution. Both convictions were in the United States District Court for the

Southern District of W est Virginia and were affirmed on appeal by the United



      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
States Court of Appeals for the Fourth Circuit. See United States v. Kokoski,

1996 W L 181482 (4th Cir. April 17, 1996) (per curiam) (unpublished); United

States v. Kokoski, 2000 W L 1853389 (4th Cir. December 19, 2000) (per curiam)

(unpublished). In 2001 he filed a motion under 28 U.S.C. § 2255 in the United

States D istrict Court for the Southern District of W est Virginia, but that court

denied relief and the United States Court of Appeals for the Fourth Circuit denied

a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring a COA

to appeal the denial of a motion under § 2255).

      On July 15, 2005, while M r. Kokoski was temporarily housed at the federal

transfer center in Oklahoma City, he filed an application under 28 U.S.C. § 2241

in the U nited States D istrict C ourt for the W estern District of Oklahoma. He

sought to have his convictions set aside because of (1) alleged constitutional

defects in the seizure of evidence used to secure his drug conviction and (2) the

involuntariness of his guilty pleas in both cases. He explained that he sought

relief under § 2241 because a motion under § 2255 was inadequate or ineffective

to test the legality of his detention. The court dismissed the application for lack

of jurisdiction. It found no basis for concluding that § 2255 was inadequate or

ineffective in this case and therefore determined that M r. Kokoski’s claims could

not be brought under § 2241.

      M r. Kokoski then filed a “M otion in Obejection [sic] to Judgment of

Dismissal Requesting Additional Findings of Fact and Conclusions of Law in

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Support Thereof and/or Alteration or Amendment Thereof Necessary to Correct a

Clear Error of Law or to Prevent M anifest Injustice: Demanding Vacator.” R.

Doc. 15. The district court construed that motion as either a motion for relief

from the court’s judgment under Fed. R. Civ. P. 60(b) or a motion to alter or

amend the judgment under Fed. R. Civ. P. 59(e). It denied the motion as untimely

under Rule 59(e) and for not alleging any appropriate grounds for relief under

Rule 60(b). M r. Kokoski appeals both the district court’s dismissal of his § 2241

application (05-6377) and its denial of his subsequent motion (06-6045). W e

affirm both decisions.

I.    SEC TIO N 2241 A PPLIC ATIO N

      W e review de novo the district court’s denial of M r. Kokoski’s § 2241

application. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).

            A petition under 28 U.S.C. § 2241 attacks the execution of a
      sentence rather than its validity and must be filed in the district
      where the prisoner is confined. It is not an additional, alternative, or
      supplemental remedy to 28 U.S.C. § 2255.

             A 28 U.S.C. § 2255 petition attacks the legality of detention,
      and must be filed in the district that imposed the sentence. The
      purpose of section 2255 is to provide a method of determining the
      validity of a judgment by the court which imposed the sentence,
      rather than by the court in the district where the prisoner is confined.

             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. M ore specifically, § 2255 prohibits a
      district court from entertaining an application for a writ of habeas
      corpus on behalf of a prisoner who is authorized to apply for relief
      by motion pursuant to § 2255 if it appears that the applicant has

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      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. Failure to obtain relief under 2255 does not
      establish that the remedy so provided is either inadequate or
      ineffective.

Id. (internal quotation marks and citations omitted). It is well-established that the

denial of a motion under § 2255 is not in itself sufficient to establish that that

remedy is inadequate or ineffective. See Williams v. United States, 323 F.2d 672,

673 (10th Cir. 1963). Nor do the procedural hurdles to filing a second § 2255

motion under the Antiterrorism and Effective Death Penalty Act of 1996

(A EDPA) render that remedy unavailable or ineffective. See Caravalho v. Pugh,

177 F.3d 1177, 1178 (10th Cir. 1999).

      M r. Kokoski acknowledges that the claims in his § 2241 application

attacking his convictions are “identical” to those he raised in his § 2255 motion

before the sentencing court. Aplt Br. (06-6045) at 14. But he argues that § 2255

was inadequate to test the legality of his sentence “due to willful blindness to the

involvement of attorney’s [sic] in scheme to defraud courts in that jurisdiction.”

Id. The only evidence of “willful blindness,” however, appears to be that the

sentencing court (and the Fourth Circuit) disagreed with him on the merits of his

§ 2255 motion. M r. Kokoski therefore has not satisfied his burden to show that

his case presents one of the “extremely limited circumstances” in which § 2255 is

inadequate to test the legality of his federal convictions. Caravalho, 177 F.3d at



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1178. The district court was correct in concluding that M r. Kokoski’s claims

cannot be brought under § 2241 and that it lacked jurisdiction to consider his

application because, properly construed as a motion under § 2255, it must be

brought in the district in w hich he w as convicted— the Southern D istrict of W est

Virginia. See Bradshaw, 86 F.3d at 166; Haugh v. Booker, 210 F.3d 1147, 1150

(10th Cir. 2000) (“Because a section 2255 motion must be brought in the district

in which the defendant was sentenced, the district court . . . lacked jurisdiction.”).

II.   R ULE 60(B) M O TIO N

      M r. Kokoski’s subsequent motion is properly construed as a motion under

Rule 60(b). See Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th

Cir. 2006) (“W hether a motion is construed as a Rule 59(e) or Rule 60(b) motion

depends upon the time in which the motion is filed. If a motion is served within

ten days of the rendition of judgment, the motion ordinarily will fall under Rule

59(e). If the motion is served after that time it falls under Rule 60(b).” (internal

quotation marks omitted)). W e generally review the denial of a motion under

Rule 60(b) only for abuse of discretion See Amoco Oil Co. v. EPA, 231 F.3d 694,

697 (10th Cir. 2000). The exception is motions under Rule 60(b)(4) alleging that

the underlying judgment is void; those we review de novo. See id. M r. Kokoski

does not state the specific grounds on which he seeks relief under Rule 60(b). His

argument amounts to a contention that the merit of his underlying challenge to his

convictions renders all contrary conclusions by any court void. He also reiterates

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his contention that § 2255 is an inadequate remedy because his motion under that

section was not decided in his favor. To the extent that he argues that the district

court’s dismissal of his § 2241 application is void, his argument lacks legal or

factual merit, and we reject it under any standard of review. Furthermore, the

district court did not abuse its discretion in concluding that M r. Kokoski failed to

assert any other basis for relief under Rule 60(b). The court was free to conclude

that none of M r. Kokoski’s arguments suggested “exceptional circumstances”

warranting relief under Rule 60(b). See Allender, 439 F.3d at 1242 (“[R]elief

under Rule 60(b) is extraordinary and may only be granted in exceptional

circumstances.” (internal quotation marks and brackets omitted)).

III.   C ON CLU SIO N

       For the reasons stated above, we AFFIRM the district court’s dismissal of

M r. Kokoski’s § 2241 application and its denial of his subsequent Rule 60(b)

motion. W e DENY his “M otion for Leave to file Attached M otion, M emorandum

with Exhibits.” W e also DENY his motions to proceed in form a pauperis on

appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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