Braun v. Gallegos, (10th Cir. 2002)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CONRAD J. BRAUN,

Petitioner-Appellant,

v.

WARDEN GALLEGOS,

Respondent-Appellee.No. 02-1292

(D.C. No. 02-Z-868)

(D. Colorado)

ORDER AND JUDGMENT(*)

Before SEYMOUR, HENRY, andBRISCOE, Circuit Judges.

Conrad J. Braun pled guilty in 1994 in federal district court in Missouri tofive counts of wire fraud and five counts of interstate transportation of fundsobtained by fraud. He was sentenced to ninety months in prison and ordered topay almost two million dollars in restitution. See United States v. Braun, 60 F.3d451 (8th Cir. 1995). After numerous proceedings in the state courts of Kansasand in various federal courts, Mr. Braun brought this pro se petition pursuant to28 U.S.C. 2241, attacking expired Kansas state court convictions that wereused to enhance his federal fraud sentence. The district court denied relief. Mr.Braun filed a motion asking the court to reconsider dismissal and grant himplacement in a community corrections facility. The court denied the motion. Forthe reasons set out below, we deny Mr. Braun's request to proceed in formapauperis and dismiss the appeal.

It appears that Mr. Braun was released from federal custody on June 18,2002, and is currently under no form of supervision. The government suggeststhat in view of Mr. Braun's present status, the entire appeal is moot.(1) Mr. Braunconcedes that the appeal of his request for placement in a community correctionsfacility is moot. We agree and accordingly dismiss as moot the appeal of thedenial of his motion to reconsider.

Mr. Braun contends that the remainder of his appeal is not moot. Weagree. Under the collateral consequences exception to the mootness doctrine, amatter is not moot if collateral consequences from a judgment give a party asubstantial stake in the outcome of the case. See Carafas v. LaVallee, 391 U.S.234, 237 (1968). Here Mr. Braun's habeas petition attacks his prior state courtcriminal convictions, and the Supreme Court presumes that a wrongful criminalconviction has continuing collateral consequences sufficient to present a case orcontroversy and avoid dismissal on the ground of mootness. See Spencer v.Kenna, 523 U.S. 1, 7-8 (1998) (citing Sibron v. New York, 392 U.S. 40,55-56 (1968)).

While Mr. Braun's habeas petition is thus not moot, we nonethelessconclude that it was properly dismissed. A petition under section 2241 attacksthe execution of a sentence rather than its validity and must be filed in the districtwhere the petitioner is incarcerated. See Bradshaw v. Story, 86 F.3d 164, 166(10th Cir. 1996). A motion under 28 U.S.C. § 2255, on the other hand, is theexclusive method for challenging the validity of a judgment and sentence, andmust be filed in the district in which the sentence was imposed. Bradshaw, 86F.3d at 166. Section 2255 provides an exception, however, and allows achallenge that otherwise must be brought under that provision to be broughtunder section 2241 upon a showing that the section 2255 remedy is "inadequateor ineffective to test the legality of his detention." 28 U.S.C. § 2255; see alsoBradshaw, 86 F.3d at 166.

"Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate orineffective only in extremely limited circumstances." Caravalho v. Pugh, 177F.3d 1177, 1178 (10th Cir. 1999). "Failure to obtain relief under 2255 does notestablish that the remedy so provided is either inadequate or ineffective,"Bradshaw, 86 F.3d at 166 (citation omitted), and thus the fact that relief is nolonger available under that provision does not render it either inadequate orineffective. Mr. Braun's ability to challenge his state convictions under section2255 may now well be extinguished. In concluding that section 2255 could notbe used to collaterally attack state convictions used in federal sentencing, theSupreme Court has recently held that "[i]f . . . a prior conviction used to enhancea federal sentence is no longer open to direct or collateral attack in its own rightbecause the defendant failed to pursue those remedies while they were available

. . . , then that defendant is without recourse." Daniels v. United States, 532 U.S.374, 382 (2001).(2) However, the fact thatsection 2255 is no longer available doesnot mean that the federal remedies available at one point were not adequate oreffective, it merely means that Mr. Braun did not pursue them in a timely manner. See, e.g., Pack v. Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000) ("section 2255'ssubstantive and procedural barriers by themselves do not establish that section2255 is inadequate or ineffective") (citing Triestman v. United States, 124 F.3d361, 376 (2d Cir. 1997)).

Mr. Braun also appears to urge the court to construe his action as one inthe nature of writ of error coram nobis, which would be available to challengehis state convictions regardless of his custody status. See United States v.Bustillos, 31 F.3d 931, 934 (10th Cir. 1994). This remedy, however, is"extremely circumscribed," United States v. Hernandez, 94 F.3d 606, 613 n.5(10th Cir. 1996), and is "available only to correct errors resulting in a completemiscarriage of justice, or under circumstances compelling such action to achievejustice," Bustillos, 31 F.3d at 934. Mr. Braun's pleadings simply do not carrythis heavy burden.(3)

We DENY Mr. Braun's request for leave to proceed on appeal in formapauperis and DISMISS his appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.After examining appellant's brief and theappellate record, this panel hasdetermined unanimously that oral argument would not materially assist thedetermination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.34.1(G). The case is therefore submitted without oral argument. This order andjudgment is not binding precedent, except under the doctrines of law of the case,res judicata, or collateral estoppel. The court generally disfavors the citation oforders and judgments; nevertheless, an order and judgment may be cited underthe terms and conditions of 10th Cir. R. 36.3.

1. Although § 2241 requires as ajurisdictional prerequisite that a petitionerbe in custody, this element is established as of the time the petition is filed. SeeCarafas v. LaVallee, 391 U.S. 234, 238 (1968). Because Mr. Braun was incustody when he filed this action, the court was authorized to consider it and hislater release from custody does not deprives us of jurisdiction.

2. Mr. Braun attempted to challenge his stateconvictions in a petitionbrought under 28 U.S.C. § 2254 and filed in the federal district court in Kansas. These proceedings were dismissed for failure to exhaust. See Braun v. Stovall,No. 97-3237, 1998 WL 165115 (10th Cir. April 3, 1998); Braun v. Stovall, Nos.95-3275, 95-3286, 95-3324, 1996 WL 211737 (10th Cir. April 30, 1996).

3. We note that Mr. Braun has unsuccessfullychallenged his stateconvictions by coram nobis in the state courts of Kansas.

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