*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### DEC 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ EDWIN W. COUSE, Petitioner-Appellant,
v. ARNETT M. FLOWERS, Respondent-Appellee. No. 98-6330 (W.D. Okla.) (D.Ct. No. CV-97-1414-T)

____________________________ ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.
Appellant Edwin Couse, a pro se federal inmate, app eals the district court’s1 Mr. Couse seeks to supplement the record on appeal with copies of various

pleadings and documents mostly prepared by him and allegedly filed with the district courts in the Middle District of Florida and Western District of Oklahoma. Having conducted a thorough review of the pleadings and documents submitted, we conclude they are not material to this appeal, and deny Mr. Couse’s request to supplement the record.

2Mr. Couse asks to proceed in forma pauperis . The mandatory in forma pauperis filing fee provisions of the Prisoner Litigation Reform Act of 1995 (PLRA) do not apply to § 2241 appeals. See In Re Phillips , 133 F.3d 770, 771 (10th Cir. 1998); McIntosh v. United States Parole Comm., 115 F.3d 809, 811-12 (10th Cir. 1997). We have reviewed his motion and the materials filed in support therein, and find Mr. Couse demonstrates a financial inability to pay the required fees. Because his argument on appeal contains some reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal, his in forma pauperisrequest is granted.
-2- dismissal of his 28 U.S.C. § 2241 petition. After a thorough review of the record, we deny Mr. Couse’s motion to supplement the recordon appeal, 1 grant his Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees, 2 and affirm the decision of the district court.
Following his conviction in the Middle District Cou rt for Florida on various counts of conspiracy, bank fraud, mail frau d and obstruction of justice, Mr. Couse received a sentence of sixty months in pr ison, three years supervised release, and $46,000 restitution. The Eleventh Cir cuit affirmed his conviction on direct appeal, and the Supreme Court denied his pet ition for certiorari on June 10, 1996. Mr. Couse began serving his sentence Septemb er 9, 1996, first at Lompoc,3 Mr. Couse subsequently received permission to view the three video tapes at

issue.
-3- California and then El Reno, Oklahoma.
After his transfer to the El Reno facility in Decem ber 1996, Mr. Couse started legal research for his § 2255 motion. Mr. Couse began complaining to prison officials about the inadequacy or unavailabi lity of legal materials. On May 18, 1997, Mr. Couse mailed to the Middle District C ourt for Florida a motion for extension of time to file his § 2255 motion, becaus e it was due June 10, 1997. In support of his request, Mr. Couse advised the courthe just recently received the trial transcripts, discovery, and investigative and other evidence used at trial, and the Bureau of Prisons continued to deny him access to the trial videotapes. 3 By order dated June 27, 1997, the district court denie d his motion for extension of time.

Mr. Couse then filed with the Western District Court of Oklahoma his petition for a writ of habeas corpus under 28 U.S.C . § 2241. In his petition, Mr. Couse alleges he is “being held illegally and in vi olation of the Constitution ... by virtue of a deprivation” of his Fourteen Amendment due process rights. Specifically, he alleges deprivation of constitutio nal rights caused by a delays in-4-

obtaining videotapes used for conviction and by the prison warden’s “failure to provide the legal research materials necessary for ... the opportunity to be heard in his [§] 2255 motion”. Mr. Couse also filed a motio n for a temporary restraining order and preliminary injunction requesting the war den cease withdrawing funds from his inmate trust fund account to satisfy the r estitution ordered in his sentence.
A magistrate judge issued a Report and Recommendati on recommending dismissal of Mr. Couse’s § 2241 petition. The magi strate judge determined: (1) Mr. Couse’s claims regarding delays in receiving tr ial videotapes and deficiencies in prison law library materials are not properly r aised in a § 2241 petition because they do not affect the validity of his sent ence; (2) his petition is an attempt to appeal the Florida court’s denial of his motion for extension of time, which is not the proper purpose of a § 2241 motion; and (3) even if his allegations are true, he fails to demonstrate the d enial of certain legal resources hindered his efforts to pursue a nonfrivolous claim . The magistrate judge also recommended denying Mr. Couse’s motion for a tempor ary restraining order and preliminary injunction because his vague and conclu sory allegations of immediate and irreparable harm, without more, are insufficien t for injunctive relief.-5-

Mr. Couse filed objections to the magistrate judge’ s Report and Recommendation. The district court made an indepen dent review of the record and precedent, and considered de novo Mr. Couse’s claims, before adopting the magistrate judge’s Report and Recommendation. The district court concluded: (1) Mr. Couse’s § 2241 appeal is merely an improperattempt to appeal the Florida federal district court’s denial of his motion seeki ng an extension of time to file his § 2255 motion, and (2) he is not entitled to in junctive relief.
We review the district court’s dismissal of a § 224 1 motion de novo
. Bradshaw v. Story , 86 F.3d 164,166 (10th Cir. 1996). Petitions file d under § 2241 are intended to attack the execution of a se ntence rather than its validity, and must be filed in the district where the prisone r is confined. Id.; see also McIntosh , 115 F.3d 809 at 811. They are not intended as an additional, alternative, or supplemental remedy to that afforde d by 28 U.S.C. § 2255. Bradshaw , 86 F.3d at 166.
After reviewing Mr. Couse’s brief, the pleadings an d the entire record before us, we agree with the decision of the distri ct court. Mr. Couse has not raised issues concerning the execution of his sente nce, as required by 28 U.S.C. § 2241. Instead, he complains about the inadequacy of prison law library-6-

materials used for researching his § 2255 motion, and delays in obtaining trial videotapes – a complaint rejected by the Florida fe deral district court in denying his motion for extension of time in filing his § 22 55 motion. As the magistrate judge and district court concluded, Mr. Couse’s att empt to use a § 2241 motion merely to appeal the Florida court’s denial of his motion for an extension to file his § 2255 motion, is an improper use of the remedi es afforded by § 2241.

We therefore AFFIRM the district court’s decision for substantially th e same reasons stated in its order dated July 16, 199 8, and the magistrate judge’s adopted Recommendation and Report dated April 30, 1 998, copies of which are attached hereto.

The mandate shall issue forthwith. Entered by the Court: WADE BRORBY United States Circuit Judge