* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and 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

MAR 12 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL KIRK LEGGETT,

Petitioner-Appellant,

v.

JOHN M. HURLEY,

Respondent-Appellee.

 

 Case No. 97-1457

 (D.C. No. 97-D-1848)

 (District of Colorado)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

After examining the briefs and 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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Michael Kirk Leggett appeals the district court’s order dismissing his 28

U.S.C. § 2241 Application for a Writ of Habeas Corpus. The district court

determined that Mr. Leggett was attacking the legality of his detention, rather
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than the execution of his sentence, and, therefore, that his petition should have

been filed under 28 U.S.C. § 2255 in the district that imposed his sentence, the

Northern District of Ohio. See Rec. vol. I, doc. 7, at 3-5 (Dist. Ct.’s Order filed

Dec. 8, 1997). The district court also noted that Mr. Leggett has already filed

three unsuccessful § 2255 petitions in that court, the last of which was dismissed

summarily. See id. at 3.

On appeal, Mr. Leggett urges the same issues he did before the trial court:

(1) that he was denied his Sixth Amendment right to counsel and thus was

unconstitutionally convicted of bank robbery, assault on a federal officer, and

violation of supervised release and (2) that, because his sentence was invalid on

the above listed charges and he has already served thirty-six months, the length of

his sentence for assaulting a correctional employee, he must be released.

We review the district court’s denial of Mr. Leggett’s habeas corpus

petition de novo. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). We

agree with the district court that the alleged denial of counsel Mr. Leggett

complains of attacks the legality of his detention rather than the execution of his

sentence. In Bradshaw, this Court held that a § 2255 petition filed with the

sentencing court is the proper method for a prisoner to attack the legality of his

detention. See Bradshaw, 164 F.3d at 166.

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

sentence rather than its validity and must be filed in the district
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where the prisoner is confined. It is not an additional, alternative, or

supplemental remedy to 28 U.S.C. § 2255.

A 28 U.S.C. § 2255 petition attacks the legality of detention

and must be filed in the district that imposed the sentence. . . .

The 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. More specifically, § 2255 prohibits a

district court from entertaining an application for a writ of habeas

corpus on behalf of a prisoner who is authorized to apply for relief

by motion pursuant to § 2255 if it appears that the applicant has

failed to apply for relief, by motion, to the court which sentenced

him, or that such court has denied him relief, unless it also appears

that the remedy by motion is inadequate or ineffective to test the

legality of his detention.

Id. (internal quotation marks omitted) (citations omitted). Mr. Leggett has

applied for and been denied relief under 28 U.S.C. § 2255 by the court which

sentenced him, and he does not allege that the § 2255 motion was “inadequate or

ineffective” to challenge his conviction. Mere “[f]ailure to obtain relief under

2255 does not establish that the remedy so provided is either inadequate or

ineffective.” Id.

Mr. Leggett attempts unsuccessfully to distinguish Bradshaw in his brief to

this Court:

In Bradshaw . . . the petitioner’s claim was that unconstitutional state

convictions were used to enhance his federal sentence. . . . Bradshaw

. . . is not on point with the petitioner’s case. The district court

should have held and [sic.] evidentiary hear [sic.] on the petitioner’s

claim of denial of Sixth Amendment right to counsel.

Aplt’s Opening Br. at Memorandum 2. Mr. Leggett is right that his petition relies

on the Sixth Amendment right to counsel while the petitioner in Bradshaw relied
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on the use of allegedly unconstitutional convictions to enhance his sentence, but

he presents us with a factual distinction that is not legally significant. 

Bradshaw’s mandate is clear: To attack the validity of his sentence, as Mr.

Leggett wishes to do, he must file a § 2255 petition with the court that sentenced

him.

In sum, as to his first claim, Mr. Leggett’s proper method for challenging

his bank robbery and related convictions is a § 2255 petition filed with the court

that sentenced him, an effort which has proved unsuccessful on three previous

occasions. As to his second claim, it is only viable if he is successful in his first

claim, which, as we have explained, is not properly before us. Therefore, the

district court was correct in dismissing Mr. Leggett’s § 2241 petition, and its

order is affirmed. The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge