* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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. 

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

### December 13, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT L. RICH, Petitioner - Appellant, v. T. C. PETERSON, Warden, Respondent - Appellee. No. 05-6171 (D.C. No. CIV-05-65-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , McKAY and HENRY , Circuit Judges.
Appellant Robert L. Rich, a federal inmate appearin g pro se , seeks leave to proceed in forma pauperis in appealing the denial of his 28 U.S.C. § 2241 ha beas petition. Because Mr. Rich has failed to present a“reasoned, nonfrivolous argument on the law and facts” in support of the is sue he raises on appeal,- 2 -

DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991), we deny his m otion to proceed in forma pauperis and dismiss this appeal. I. Background In 1989, Mr. Rich was convicted in the United State s District Court for the Eastern District of Louisiana of engaging in a cont inuing criminal enterprise in violation of 21 U.S.C. § 848. On direct appeal, th e United States Court of Appeals for the Fifth Circuit affirmed his convicti on. Mr. Rich unsuccessfully sought relief under 28 U.S.C. § 2255, and the Fifth Circuit denied his requests to file successive § 2255 motions. See United States v. Rich , 141 F.3d 550, 550–51 (5th Cir. 1998). Mr. Rich then filed a petition pursuant to 28 U.S.C . § 2241 in the Western District of Oklahoma, where he is incarcerated. Th e petition alleges that during his trial the prosecution failed to disclose exculp atory evidence and knowingly used perjured testimony, and that there was a varia nce between the indictment and the facts on which the jury based its verdict. The district court accepted a magistrate judge’s determination that relief was un available under § 2241 and recommendation that the action be dismissed. On appeal, Mr. Rich contends that the district court’s decision both failed to enforce the plain language of §§ 2255 and 2241 a nd applied those sections so as to “work[] an unconstitutional suspension of the writ of habeas corpus.” He- 3 -

asks that we vacate the decision of the district co urt and remand for a hearing on the merits.
II. Discussion Reviewing de novo the district court’s denial of Mr. Rich’s habeas p etition, we agree that he is not entitled to relief under § 2241. Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). Generally, “[a] petitio n under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity,” whereas “[a] 28 U.S.C. § 2255 petition attacks the legality of dete ntion.” Id. Here, Mr. Rich’s arguments are challenges to the validity of his sen tence, which he may only make under § 2241 if he meets his burden of showing that§ 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255; see Bradshaw , 86 F.3d at 167. Mr. Rich fails to meet his burden. His only claim is that § 2255 is inadequate because he cannot file a § 2255 motion w ithout prior authorization from the Fifth Circuit, which has “already denied P etitioner the authorization to file such a motion.” However, we have clearly held that a habeas petitioner’s inability to obtain leave to file a second or succe ssive § 2255 petition does not make that remedy inadequate or ineffective. Carava lho v. Pugh , 177 F.3d 1177, 1179 (10th Cir. 1999) (“The mere fact that [a habea s petitioner] is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is- 4 -

inadequate.”). Therefore, Mr. Rich has not met his burden and is not entitled to proceed under § 2241. Mr. Rich also argues that the district court’s deci sion “effectively suspends the writ of habeas corpus” in violation of the Cons titution. See U.S. Const. art. I, § 9, cl. 2. This argument also fails. Section 225 5’s limitation on second or successive habeas petitions does not violate the Su spension Clause. Felker v. Turpin , 518 U.S. 651, 664 (1996). Moreover, “the substitution of a collateral remedy [such as § 2255] which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitut e a suspension of the writ of habeas corpus.” Swain v. Pressley , 430 U.S. 372, 381 (1977). Because Mr. Rich has not shown that the remedy of § 2255 is inadequate or ineffective, we reject his suspension argument.
III. Conclusion Mr. Rich has failed to present a “reasoned, nonfriv olous argument” in support of his contention that his § 2255 remedy is inadequate or ineffective. See DeBardeleben , 937 F.2d at 505. We therefore DENY his motion to proceed in forma pauperis and DISMISS this appeal.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge