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

### MAY 20 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES JOSEPH OWENS-EL,

Petitioner-Appellant, No. 03-6020
v. (D.C. No. CIV-02-1674-F) (W.D. Oklahoma) WARDEN SURGURE, FEDERAL TRANSFER CENTER,

Respondent-Appellee.

ORDER AND JUDGMENT

Before EBEL , HENRY , and HARTZ , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore su bmitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders an d judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.-2-

Mr. James Joseph Owens-El, a federal prisoner appearing pro se, appeals the district court’s dismissal of his application f or writ of habeas corpus under 28 U.S.C. § 2241. Mr. Owens-El filed a § 2241 application in the United States District Court for the Western District of Oklahoma , challenging a sentence imposed by the United States District Court for the Central District of California. The matter was referred to a magistrate judge, who recommended dismissal for lack of jurisdiction. The district court adopted t he magistrate judge’s report and dismissed the application. In his report the magistrate judge cited Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996), for the proposition that a “§ 224 1 [application] attacks the execution of a sentence rather than its validity an d must be filed in [the] district in which [the] prisoner is confined.” Report and R ecommendation at 2. Since Mr. Owens-El was confined at the United States Peni tentiary in Florence, Colorado, when he filed his application, the magist rate judge reasoned, he should have filed in Colorado, not Oklahoma. The magistrate judge further ruled that even if Mr. Owens-El’s application could be constru ed as an attack on his conviction under 28 U.S.C. § 2255, the Oklahoma fil ing would still be improper because, according to Bradshaw , 86 F.3d at 166, such an application would have to have been filed in the Central District of Calif ornia, where the sentence was imposed. Thus, the magistrate judge concluded, the Western District of-3-

Oklahoma did not have the authority to review Mr. O wens-El’s application, whether it arises under § 2241 or § 2255. On appeal Mr. Owens-El challenges the district court’s dismissal on two grounds. First, he says that he in fact filed an application with the Oklahoma District Court during his stay at a federal transfe r center in Oklahoma City. He says that the filing was not recorded because a cle rk intentionally and fraudulently concealed his application. Second, he appears to a rgue that notwithstanding the place-of-filing rules, the Oklahoma District Court was required to accept his application because (1) the District of Columbia Ci rcuit Court of Appeals directed him to file an application in the district of his c onfinement after denying him relief in an earlier proceeding, (2) he attempted t o file in accordance with that direction, and (3) the Western District of Oklahomamust follow the direction of superior courts like the District of Columbia Circu it. We review de novo a district court’s dismissal of a n application for a writ of habeas corpus under § 2241. See Bradshaw, 86 F.3d at 166. We affirm. As for Mr. Owens-El’s first argument—that an Oklaho ma court clerk fraudulently concealed his application—we have care fully reviewed Mr. OwensEl’s almost incomprehensible pleadings in district court, and we have not found any reference to misconduct by a court clerk. Beca use Mr. Owen-El’s argument was not raised below, we will not address it here. See King v. United States , 301-4-

F.3d 1270, 1274 (10th Cir. 2002) (As a general rule , “this court will not consider an issue on appeal that was not raised below.”). Mr. Owens-El’s second argument—that the district co urt was required to hear his case because the District of Columbia Circ uit essentially ordered it to do so—is without merit. The order that Mr. Owens-El r eferences in support of this argument does not direct any action; it merely stat es: “The avenue for the relief sought here is [an application] for writ of habeas corpus before a court in the jurisdiction in which [the applicant] is confined.” In re James Joseph Owens , No. 02-5221 (D.C. Cir. Sept. 20, 2002) (order denying p etition for writ of mandamus). In the district court Mr. Owens-El filed an unsucce ssful application to proceed without prepayment of fees. Mr. Owens-El h as renewed that request on appeal. Because Mr. Owens-El has failed to show “areasoned, nonfrivolous argument on the law and facts in support of the iss ues raised on appeal,” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991), we deny the request. For substantially the same reasons set forth in the magistrate judge’s Report and Recommendation, adopted by the district court i n its Order of December 23, 2002, we AFFIRM . Mr. Owens-El’s application for a certificate of appealability-5-

is denied because such a certificate is unnecessary to appeal the denial of a § 2241 petition.
ENTERED FOR THE COURT
Harris L Hartz Circuit Judge