FILED

United States Court of Appeals

Tenth Circuit

August 15, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIM E. HOLZ a.k.a. TIMOTHY

EDWARD HOLZ,

Petitioner - Appellant,

v.

J. OLIVER,

Respondent - Appellee.

No. 14-1240

(D.C. No. 1:14-CV-00960-LTB)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

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.

Timothy Holz, a federal prisoner proceeding pro se, appeals the dismissal

of his action brought pursuant to 28 U.S.C. § 2241. He had pled guilty to bank

*

This order and judgment is not binding precedent, except under the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. 32.1.
robbery and was sentenced to 210 months in prison. He did not appeal his

conviction or sentence, nor did he file a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255. 

Mr. Holz filed the instant petition, alleging that “[t]he ACA and the bop

[Bureau of Prisons] have violated the legal contract (plea agreement) between the

U.S. District Court [and] this defendant with use of illegal digital video recorders

executing this 210 month sentence illegally [and] unconstitutionally. The

contract is null and void!” Application for a Writ of Habeas Corpus Pursuant to

28 U.S.C. § 2241 at 2; R. Vol. 1 at 2. He identifies the “ACA” as the “American

Correctional Association, Inc.” Mr. Holz purported to be “challenging the fact

o[f] my confinement as well as its duration of execution in illegal and

unconstitutional housing facilities.” Id. at 3. As a remedy, he asked for his

“immediate release.” He was incarcerated at the United States Penitentiary, High

Security, in Florence, Colorado when he initiated the instant action. Mr. Holz is

currently incarcerated at the United States Penitentiary in Lewisburg,

Pennsylvania.

On April 9, 2014, the magistrate judge to whom the matter had been

referred granted Mr. Holz leave to proceed pursuant to 28 U.S.C. § 1915 and

directed him to show cause within thirty days why the habeas application should

not be denied because he has an adequate and effective remedy pursuant to 28

U.S.C. § 2255 in the sentencing court (the Western District of Oklahoma). Mr.

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Holz filed a response to the order to show cause, claiming that he “is not

challenging his criminal conviction” but rather is “challenging the execution of

his 210 month sentence because use of the fiberoptic digital video recorders in all

bop institutions is absolutely illegal and unconstitutional.” Response at 1; R. Vol.

1 at 23. 

The district court subsequently denied Mr. Holz’s 28 U.S.C. § 2241 petition

and dismissed the action without prejudice because Mr. Holz failed to

demonstrate that the remedy available to him pursuant to 28 U.S.C. § 2255 is

inadequate or ineffective. As the court explained: 

Mr. Holz is challenging the validity of his conviction and sentence in

this habeas corpus action. He specifically contends that “ACA” . . .

and the BOP have violated his plea agreement by running fiber optic

digital video recorders in all federal prison facilities. As relief, he

asks for his immediate release. Mr. Holz’s allegations are

insufficient. Applicant fails to allege how the BOP’s running video

recorders in its prison relates to his plea agreement. Even if his

allegations were sufficient, they relate to his conviction and

sentencing, not the execution of his sentence. The Court did not

require Mr. Holz to file an amended application that provides a clear

statement of the claim he is asserting because it appeared that

whatever claim he is his asserting may not be raised in this habeas

corpus action under § 2241.

Order of Dismissal at 2-3; R. Vol. 1 at 27-28. The district court further stated:

The purposes of an application for a writ of habeas corpus

pursuant to § 2241 and a motion pursuant to § 2255 are distinct and

well established. “ A petition under 28 U.S. C. § 2241 attacks the

execution of a sentence rather than its validity” and “[a] 28 U.S.C.

§ 2255 petition attacks the legality of detention.” Bradshaw v. Story,

86 F.3d 164, 166 (10th Cir. 1996). A habeas corpus petition pursuant

to 28 U.S.C. § 2241 “is not an additional, alternative, or

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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); see

28 U.S.C. § 2255(e).

Id. at 3; R. Vol. 1 at 28. The court further observed that Mr. Holz bears the

burden of demonstrating that the remedy available pursuant to 28 U.S.C. § 2255

is inadequate or ineffective. See Prost v. Anderson, 636 F.3d 578, 584 (10th Cir.

2011). And, this burden is not easily satisfied because “[o]nly in rare instances

will § 2255 fail as an adequate or effective remedy to challenge a conviction or

the sentence imposed.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010);

see also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1998) (noting that the

remedy available under § 2255 is inadequate or ineffective only in “extremely

limited circumstances”). 

As the district court concluded, Mr. Holz fails to demonstrate that the

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

or ineffective. The fact that he may be time-barred from filing a § 2255 motion

in the sentencing court is not enough, by itself, to demonstrate that the remedy

provided by § 2255 is inadequate or ineffective. See Carvalho, 177 F.3d at 1178. 

The district court accordingly denied Mr. Holz’s application and dismissed the

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action.1

 The court also certified pursuant to § 1915(a)(3) that any appeal from its

order would not be taken in good faith and therefore it denied Mr. Holz’s request

to proceed in forma pauperis (“ifp”)on appeal. 

Mr. Holz appeals that dismissal and seeks the right to proceed ifp on

appeal. We affirm the district court’s dismissal for the reasons stated by the

court, as explained above. The court’s analysis is thorough and clear. We also

deny Mr. Holz’s request to proceed ifp on appeal.

AFFIRMED. We also deny any other pending motions by Mr. Holz. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

1

The district court further noted that to the extent Mr. Holz is complaining

about the conditions of his confinement (i.e., the use of fiber optic digital video

recorders in the federal prison facility in which he is confined), he may do so in a

Bivens action, under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) and 28

U.S.C. § 1331. 

The court also noted that Mr. Holz already has three or more dismissals for

frivolousness or failure to state a case. See Holz v. McFadden, 2011 WL

2883108 (C. D. Cal. July 19, 2011) (noting that Mr. Holz has at least fourteen

dismissals in federal court for frivolousness or failure to state a claim on which

relief can be granted); Holz v. McFadden, 2010 WL 3069740 (C.D. Cal. Aug. 5, 

2010). 

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