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

determined unanimously that oral argument would not materially 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 submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, or 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. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 23 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DON ALTON HARPER,

Petitioner - Appellant,

v.

SAM L. PRATT, Warden,

Respondent - Appellee.

No. 03-1081

(D.C. No. 02-Z-986)

(D. Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.

Don Alton Harper appeals pro se the district court’s denial of his

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He asks

this court for leave to proceed in forma pauperis. For the reasons set forth below,

we deny him in forma pauperis status and affirm the district court’s denial of the
1

 Mr. Harper is currently in the custody at the Federal Correctional

Institution at Englewood, Colorado.

-2-

petition.

Mr. Harper was convicted of bank robbery in the United States District

Court for the District of Kansas. His conviction and sentence were affirmed by

this court on direct appeal. United States v. Harper, No. 94-3104, 1995 WL

228267 (10th Cir. Apr. 17, 1995). Mr. Harper then filed a succession of 28

U.S.C. § 2255 motions in the District of Kansas, the first of which was actually

filed under § 2241 but construed under § 2255, all of which were denied. Mr.

Harper also initiated a mandamus action, which was dismissed as legally frivolous

pursuant to 28 U.S.C. § 1915(b) and affirmed on appeal. See Harper v. United

States Dist. Ct., No. 96-1057, 1996 WL 174701 (10th Cir. April 12, 1996).

In the instant case, Mr. Harper brought a petition under § 2241 before the

United States District Court for the District of Colorado,1

 in which he attacks the

validity of his conviction and sentence. As the district court explained in its

order, the purposes of petitions brought under § 2241 and § 2255 are distinct. A

petition under § 2241 attacks the execution of the sentence, and is brought in the

district in which the petitioner is confined, while a petition under § 2255 attacks

the validity of the conviction and sentence, and must be brought before the court

that imposed the sentence. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
-3-

1996); Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (per curiam). 

Furthermore, § 2255 is the exclusive remedy for challenging the validity of a

conviction and sentence unless it is inadequate or ineffective. Johnson, 347 F.2d

at 366. Only in that rare scenario would § 2241 provide an alternative form of

relief. See Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per

curiam). 

It is clear from Mr. Harper’s pro se brief on appeal that he is challenging

the validity, rather than the execution, of his conviction and sentence. The

district court was therefore correct in determining that a petition under § 2255

was the sole remedy available to him in the absence of a showing of

ineffectiveness or inadequacy of that remedy. Mr. Harper makes no such

showing. We have previously held that the restrictions on filing successive §

2255 motions do not render the § 2255 remedy inadequate or ineffective. See

Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999). Nor do the denials of

relief in his previous § 2255 proceedings indicate the inadequacy or

ineffectiveness of this remedy. See Williams, 323 F.2d at 673. Because Mr.

Harper has an adequate and effective remedy under § 2255 in the District of

Kansas, where he was sentenced, § 2241 is inappropriate for this case. The

district court’s denial of the petition was therefore correct.

Mr. Harper seeks leave to proceed in forma pauperis on appeal. However,
-4-

because he has not shown the existence of a reasoned, nonfrivolous argument on

the law and the facts in support of reversing the district court’s dismissal of his

action, we deny him in forma pauperis status. See DeBardeleben v. Quinlan, 937

F.2d 502, 505 (10th Cir. 1991). 

Accordingly, we DENY the motion for in forma pauperis status and

AFFIRM the district court’s denial of the habeas petition.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge