Homero Morales-Cantu v. United States of America J.W. Booker

Tenth Circuit

Homero Morales-Cantu v. United States of America J.W. Booker

76 F.3d 393, 1996 U.S. App. LEXIS 7213, 1996 WL 47431

CourtCourt of Appeals for the Tenth Circuit

DecidedFebruary 6, 1996

Docket95-1377

StatusPublished

This text of 76 F.3d 393 (Homero Morales-Cantu v. United States of America J.W. Booker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Homero Morales-Cantu v. United States of America J.W. Booker, 76 F.3d 393, 1996 U.S. App. LEXIS 7213, 1996 WL 47431 (10th Cir. 1996).

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76 F.3d 393

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Homero MORALES-CANTU, Petitioner-Appellant,
v.
UNITED STATES of America; J.W. Booker, Respondents-Appellees.

No. 95-1377.

United States Court of Appeals, Tenth Circuit.

Feb. 6, 1996.

ORDER AND JUDGMENT1

Before PORFILIO, McKAY and KELLY, Circuit Judges.2

Mr. Morales-Cantu, an inmate appearing pro se and in forma pauperis appeals from the district court's dismissal of his 28 U.S.C. 2241 habeas corpus petition. The district court dismissed the petition because Mr. Morales-Cantu was challenging the validity of his sentence, not its execution, and a 28 U.S.C. 2255 motion in the court which imposed sentence (Western District of Texas) was the proper remedy, not a 2241 petition. Mr. Morales-Cantu has not shown that the remedy under 2255 was inadequate or ineffective, therefore, he is precluded from bringing this action under 2241. See United States v. Scott, 803 F.2d 1095, 1096 (10th Cir.1986) (per curiam); Carter v. Attorney General, 782 F.2d 138, 141 (10th Cir.1986); United States v. Condit, 621 F.2d 1096, 1097-98 (10th Cir.1980); Johnson v. Taylor, 347 F.2d 365, 366-67 (10th Cir.1965) (per curiam).

AFFIRMED. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

2

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); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument

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76 F.3d 393

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Homero MORALES-CANTU, Petitioner-Appellant,
v.
UNITED STATES of America; J.W. Booker, Respondents-Appellees.

No. 95-1377.

United States Court of Appeals, Tenth Circuit.

Feb. 6, 1996.

ORDER AND JUDGMENT1

Before PORFILIO, McKAY and KELLY, Circuit Judges.2

Mr. Morales-Cantu, an inmate appearing pro se and in forma pauperis appeals from the district court's dismissal of his 28 U.S.C. 2241 habeas corpus petition. The district court dismissed the petition because Mr. Morales-Cantu was challenging the validity of his sentence, not its execution, and a 28 U.S.C. 2255 motion in the court which imposed sentence (Western District of Texas) was the proper remedy, not a 2241 petition. Mr. Morales-Cantu has not shown that the remedy under 2255 was inadequate or ineffective, therefore, he is precluded from bringing this action under 2241. See United States v. Scott, 803 F.2d 1095, 1096 (10th Cir.1986) (per curiam); Carter v. Attorney General, 782 F.2d 138, 141 (10th Cir.1986); United States v. Condit, 621 F.2d 1096, 1097-98 (10th Cir.1980); Johnson v. Taylor, 347 F.2d 365, 366-67 (10th Cir.1965) (per curiam).

AFFIRMED. The mandate shall issue forthwith.

1

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

2

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); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument

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