UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KEITH BRYAN WEBB-EL, 

 Petitioner - Appellant, 

v. 

UNITED STATES PAROLE 

COMMISSION, 

 Respondent - Appellee. 

No. 19-1326 

(D.C. No. 1:19-CV-00774-LTB-GPG 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

Petitioner Keith Webb-El, a federal prisoner proceeding pro se, appeals the 

district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 

2241 and seeks leave to proceed in forma pauperis.

1

 We affirm the dismissal of his 

petition and deny his motion to proceed in forma pauperis. 

 *

 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

 Because Mr. Webb-El is a federal prisoner proceeding under § 2241, a 

certificate of appealability is not a prerequisite to his appeal. See McIntosh v. United 

States Parole Comm'n, 115 F.3d 809, 810 n.1 (10th Cir. 1997). 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 18, 2019

Elisabeth A. Shumaker 

Clerk of Court
2

I 

In 1985, Mr. Webb-El was convicted in the United States District Court for the 

Western District of Texas of one count of murder and two counts of injury to a child. 

He was sentenced to life imprisonment. Since his conviction, Mr. Webb-El has filed 

at least six unsuccessful motions pursuant to 28 U.S.C. § 2255 in the Western District 

of Texas in addition to numerous unsuccessful § 2241 petitions in other federal 

district courts. 

Mr. Webb-El filed the instant § 2241 petition on March 15, 2019. The 

magistrate judge ordered Mr. Webb-El to show cause why the action should not be 

dismissed because he has an adequate and effective remedy available to him in the 

sentencing court pursuant to § 2255. Mr. Webb-El did not respond to the court’s 

show cause order. The magistrate judge found that Mr. Webb-El failed to 

demonstrate that the remedy available in the sentencing court pursuant to § 2255 was 

inadequate or ineffective. Accordingly, the magistrate judge recommended Mr. 

Webb-El’s § 2241 petition be denied and the action be dismissed for a lack of 

statutory jurisdiction. 

The magistrate judge advised Mr. Webb-El that his failure to file objections to 

the recommendation may result in him losing his right to appeal the magistrate 

judge’s factual findings. Despite this warning, Mr. Webb-El did not file objections 

or otherwise respond to the magistrate judge’s recommendation. The district court 

adopted the recommendation in full and dismissed Mr. Webb-El’s petition. Mr. 

Webb-El timely appealed. 
3

II 

On appeal, this court directed Mr. Webb-El to address the issue of whether he 

waived appellate review by failing to file objections to the magistrate judge’s 

recommendation. Mr. Webb-El responded that he never received the magistrate 

judge’s recommendation and therefore did not know to file objections. 

Thus, before we may proceed to the merits of Mr. Webb-El’s appeal, we must first 

address the threshold issue of whether Mr. Webb-El has waived his right to appeal by 

failing to object to the magistrate judge’s recommendation. 

In Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991), this circuit 

noted that “we have adopted a firm waiver rule when a party fails to object to the 

findings and recommendations of the magistrate.” That rule “provides that the 

failure to make timely objection to the magistrate’s findings or recommendations 

waives appellate review of both factual and legal questions.” Id. However, waiver 

only applies if a litigant was “properly informed of the consequences of his failure to 

object.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). 

In Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996), we concluded that 

waiver was “not appropriate” where the magistrate judge’s recommendation informed 

the petitioner that his “failure to file written objections may bar him from appealing 

the factual findings of the magistrate judge” but did not warn him “that a failure to 

object waives appellate review of legal questions as well.” Similarly here, the 

magistrate judge only informed Mr. Webb-El that his failure to file objections “may 

bar [him] from appealing the factual findings of the Magistrate Judge that are 
4

accepted or adopted by the District Court.” ROA at 45 (emphasis added). The 

magistrate judge recommended dismissal of Mr. Webb-El’s petition due to a lack of 

statutory jurisdiction. Because Mr. Webb-El was not informed that his failure to 

object would bar review of this legal issue, our waiver rule is inapplicable. See 

Talley, 91 F.3d at 1413. We now turn to the merits of Mr. Webb-El’s appeal. 

III 

 We review de novo the district court's dismissal of a § 2241 petition. Broomes 

v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). Mr. Webb-El’s instant § 2241 

petition challenges the validity of his federal sentence and conviction. Mr. WebbEl’s petition alleges that his indictment was defective—an argument he has set forth 

in several other habeas petitions. See, e.g., Webb v. Warden Allenwood USP, 735 F. 

App’x 42, 42 (3d Cir. 2018) (“At issue here is another § 2241 petition that Webb 

filed within this Circuit and in which he again claimed that he is innocent because his 

1985 superseding indictment was deficient.”). Specifically, Mr. Webb-El’s petition 

asserts:

The parole Commission is acting in violations of the 

Const. and Laws of the U.S. holding the petitioner, indinite 

[sic] for a non-existing capital offense of second degree 

murder, he was not charged by a federal Grand Jury in 

Count One of the Government July 16, 1985 indictment. In 

violation of his 5th Amend. Const. Rights, and Human 

Rights . . . . The U.S. Parole Commission . . . [i]s 

unlawfully confining the petitioner, against his will, in 

voluntary servitude in federal custody, unconstitutionally 

holding the petitioner, to answer for a non-existing capital 

offense of second degree murder. That the petitioner 

Webb-El, was not charged by a Federal Grand Jury on 
5

Count One of the U.S. Government July 16, 1985 

superseding indictment. 

ROA at 5. 

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

than its validity” while “[a] 28 U.S.C. § 2255 petition attacks the legality of 

detention.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Importantly, a 

habeas corpus petition pursuant to § 2241 “is not an additional, alternative, or 

supplemental remedy, to the relief afforded by motion in the sentencing court under 

§ 2255.” Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam). 

Instead, “[t]he 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.” 

Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965). It is “the prisoner’s burden” 

to demonstrate that the remedy available pursuant to § 2255 is ineffective or 

inadequate so that the prisoner can resort to § 2255(e)’s savings clause. Prost v. 

Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (emphasis added) (holding that the 

relevant metric is “whether a petitioner’s argument challenging the legality of his 

detention could have been tested in an initial § 2255 motion”). If § 2255(e)’s savings 

clause applies, it permits “a federal prisoner to resort to § 2241 to challenge the 

legality of his detention, not just the conditions of his confinement.” Id. 

 Mr. Webb-El, however, did not attempt to demonstrate to the district court that 

the remedy available in the sentencing court pursuant to § 2255 is inadequate or 

ineffective. Mr. Webb-El failed to respond to a show cause order asking him to 
6

demonstrate why § 2255 does not provide an adequate and effective remedy. Mr. 

Webb-El has also failed to make any such showing to this court. Because Mr. WebbEl has not demonstrated (or even argued) that the remedy available pursuant to 

§ 2255 is inadequate or ineffective, he cannot resort to the savings clause and § 2241. 

Accordingly, Mr. Webb-El’s § 2241 petition was properly dismissed.2

 Mr. Webb-El has also filed a motion to proceed in forma pauperis. Because 

Mr. Webb-El has not provided a “reasoned, nonfrivolous argument on the law and 

facts in support of the issues raised on appeal,” his motion is denied. McIntosh, 115 

F.3d at 813 (quotation omitted). 

IV 

For the foregoing reasons, we AFFIRM the district court’s dismissal of Mr. 

Webb-El’s petition and DENY his motion to proceed in forma pauperis. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

 2

 We note that Mr. Webb-El has raised several frivolous arguments on appeal 

that are unrelated to the magistrate judge’s analysis of the propriety of his § 2241 

petition. Mr. Webb-El contends, without pointing to any evidence in the record, that 

the district court’s dismissal of his § 2241 petition was inconsistent with due process 

because he was not afforded a fair “adjudication process before a neutral Article III 

[j]udge.” Aplt.’s Br. at 7. He also argues that Congress has not suspended the writ 

of habeas corpus—an accurate, but irrelevant, assertion. Last, he contends—contrary 

to our precedent and without support—that the savings clause is unconstitutional. 

These arguments are wholly without merit.