*

After examining the brief 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)(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not binding precedent except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

July 13, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GERARDO JUAREZ-LOZANO,

Petitioner - Appellant,

v.

CLAUDE CHESTER, Warden; 

UNITED STATES OF AMERICA,

Respondents - Appellees.

No. 09-3311

(D. Kansas)

(D.C. No. 5:09-CV-03220-RDR)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Gerardo Juarez-Lozano, a federal prisoner appearing pro se, appeals the

district court’s dismissal of his application for relief under 28 U.S.C. § 2241 and

its denial of his motion for reconsideration. We agree with the district court that

§ 2241 was not available to him because a remedy under 28 U.S.C. § 2255 was

not inadequate or ineffective. Accordingly, we affirm.

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-2-

Mr. Juarez-Lozano filed his claim under § 2241 in the United States

District Court for the District of Kansas. He contended (1) that he was sentenced

“based on a coerced guilty plea” but “did not appeal his illegal sentence pursuant

to 18 U.S.C. § 3742(a)(1)(2), due to the court’s violation of Federal Rule

Criminal Procedure 32 (c)(5),” R., Vol 1 at 3; (2) that his rights as a native of

Mexico under the Vienna Convention were violated in various ways; and (3) that

his trial counsel was ineffective. He had previously filed an unsuccessful motion

for relief under 28 U.S.C. § 2255. 

The district court dismissed the action. It pointed out that a claim under

§ 2241 is not cognizable “unless . . . the remedy by motion [under § 2255] is

inadequate or ineffective to test the legality of [the prisoner’s] detention.” 

28 U.S.C. § 2255(e). Mr. Juarez-Lozano, however, had shown no such

inadequacy or ineffectiveness. The court said that it was not enough that a claim

under § 2255 might be barred by the statute of limitations, see id. § 2255(f), or by

the restrictions on second-or-successive motions under § 2255, see id. §2255(h).

Mr. Juarez-Lozano filed a motion to reconsider under Fed. R. Civ. P. 59(e)

on the ground that § 2255 could not provide an adequate remedy for his claims

under the Vienna Convention. The district court denied the motion. 

On appeal Mr. Juarez-Lozano argues (1) that § 2241 is the only remedy for

a habeas claim based on a treaty violation; (2) that he could not appeal under

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18 U.S.C. § 3742 because the sentencing judge violated Fed. R. Crim. P. 32; and

(3) that his court-appointed trial counsel was ineffective.

We reject Mr. Juarez-Lozano’s contentions. His Vienna Treaty argument

fails because § 2255 is available for claims based on treaties. See Davis v. United

States, 417 U.S. 333, 344 (1974). Mr. Juarez-Lozano has not shown why he could

not have brought his treaty claims or his other claims when he filed his original

§ 2255 motion. The remedy by motion under § 2255 is not inadequate or

ineffective simply because now he could be barred by timeliness requirements or

the strict restrictions on second or successive motions. See Sines v. Wilner,

No. 09-1347, 2010 WL 2473163, at *2 (10th Cir. June 21, 2010).

We AFFIRM the judgment of the district court.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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