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 pris oner proceeding pro se, appeals the district court’s dismis sal 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, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Court2 I In 1985, Mr. Webb-El was convicted in th e United States District Court for the Western District of Texas of one count of murder and two co unts of injury to a child. He was sentenced to life imprisonment. Si nce his conviction, Mr. Webb-El has filed at least six unsuccessful moti ons pursuant to 28 U.S.C. § 22 55 in the Western District of Texas in addition to numerous unsucces sful § 2241 petitions in other federal district courts. Mr. Webb-El filed the instant § 224 1 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 reme dy 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 j udge found that Mr. Webb-El failed to demonstrate that the remedy available in the sentencing court pur suant to § 2255 was inadequate or ineffective. Accordingl y, 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 wa rning, Mr. Webb-El did not file objections or otherwise respond to the magistrate judg e’s recommendation. The district court adopted the recommendation in full and di smissed 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 magist rate 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 fa ils 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 litigan t 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 ma gistrate judge’s recommendation informed the petitioner that his “failu re to file written objections may bar him from appealing the factual findings of the ma gistrate judge” but did not wa rn 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 are4 accepted or adopted by the District Cour t.” ROA at 45 (em phasis added). The magistrate judge recommended dismissal of Mr. Webb-El’s petition due to a lack of statutory jurisdiction. Beca use Mr. Webb-El was not info rmed that his failure to object would bar review of this legal issu e, 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 cour t's dismissal of a § 2241 petition. Broomes v. Ashcroft , 358 F.3d 1251, 1255 ( 10th Cir. 2004). Mr. We bb-El’s instant § 2241 petition challenges the validity of his fede ral 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 anothe r § 2241 petition that Webb filed within this Circuit and in which he ag ain claimed that he is innocent because his 1985 superseding indictment was deficient.”). Specifica lly, Mr. Webb-El’s petition

asserts: The parole Commission is ac ting in violations of the Const. and Laws of the U.S. holding the petitioner, indinite [sic] for a non-existing capita l 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. Paro le Commission . . . [i]s unlawfully confining the petiti oner, against his will, in voluntary servitude in federal custody, unconstitutionally holding the petitioner, to an swer for a non-existing capital offense of second degree mu rder. That the petitioner Webb-El, was not charged by a Federal Grand Jury on5 Count One of the U.S. Government July 16, 1985 superseding indictment. ROA at 5. “A petition under 28 U.S.C. § 2241 attack s 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 Ci r. 1996). Importantly, a habeas corpus petition pursuant to § 2241 “i s 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 reme dy 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 Ci r. 1965). It is “the prisoner’s burden ” to demonstrate that the remedy availabl e pursuant to § 2255 is ineffective or inadequate so that the prisoner can re sort to § 2255(e)’s savings clause. Prost v. Anderson , 636 F.3d 578, 584 (10t h Cir. 2011) (emphasis added) (holding that the relevant metric is “wheth er a petitioner’s argument cha llenging 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 pris oner 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 cour t pursuant to § 2255 is inadequate or ineffective. Mr. Webb-El failed to res pond to a show cause order asking him to6 demonstrate why § 2255 does not provide an adequate and effective remedy. Mr. Webb-El has also failed to make any such showing to this cour t. 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 saving s clause and § 2241. Accordingly, Mr. Webb-El’s § 224 1 petition was properly dismissed. 2 Mr. Webb-El has also filed a motion to proceed in forma pauperis . Because Mr. Webb-El has not provide d 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 (quot ation omitted). IV For the foregoing reasons, we AFFIRM th e district court’s dismissal of Mr. Webb-El’s petition and DE NY his motion to proceed in forma pauperis

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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 pr opriety of his § 2241 petition. Mr. Webb-El contends , without pointing to any ev idence 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 “adjudi cation process before a neutral Article III [j]udge.” Aplt.’s Br. at 7. He also ar gues 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 w holly without merit.