Cody Leveke v. Brown

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2023
• Docket: 23-15746
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CODY RAY LEVEKE, No. 23-15746

Petitioner-Appellant, D.C. No. 2:23-cv-00654-SPL-ESW

v.

BROWN, First Name Unknown, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona Steven P. Logan, District Judge, Presiding

Submitted August 15, 2023**

Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.

Federal prisoner Cody Ray Leveke appeals pro se from the district court’s

judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have jurisdiction

under 28 U.S.C. § 1291. Reviewing de novo, see Stephens v. Herrera, 464 F.3d

895, 897 (9th Cir. 2006), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Leveke contends in his opening brief and “motion to allow appeal to

proceed” that he meets the escape hatch requirements of 28 U.S.C. § 2255(e). He

argues that he is permitted to file a § 2241 petition in the district of confinement

because caselaw in the sentencing district–the Southern District of Iowa–bars his

claims and renders § 2255 relief inadequate or ineffective. The district court did

not err in concluding otherwise. The record shows that Leveke has not filed a first

§ 2255 motion and thus he cannot establish he has not had an “unobstructed

procedural shot” at presenting his claims. See Stephens, 464 F.3d at 898. Further,

§ 2255 is not “inadequate or ineffective” even if, as Leveke contends, Eighth

Circuit authority is not favorable to his claims. See Jones v. Hendrix, 143 S. Ct.

1857, 1870 & n.4 (2023) (stating that adverse circuit law does not render § 2255

“inadequate or ineffective” to test the prisoner’s detention). Accordingly, the

district court properly dismissed Leveke’s § 2241 petition for lack of jurisdiction.

See Stephens, 464 F.3d at 899.

AFFIRMED.

2 23-15746