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    Browning v. Oliver, 10th Cir. (2016)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Elrader Browning Jr.'s application for relief under 28 U.S.C. § 2241. Browning, a federal prisoner serving a life sentence imposed in 1988, sought to challenge his sentence under § 2241, arguing the sentencing court failed to make a drug amount determination or state reasons for the sentence. However, the Court found Browning failed to show that relief under 28 U.S.C. § 2255 was inadequate or ineffective, as required to proceed under § 2241, and affirmed the district court's dismissal of his application.

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    Browning v. Oliver, 10th Cir. (2016)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Elrader Browning Jr.'s application for relief under 28 U.S.C. § 2241. Browning, a federal prisoner serving a life sentence imposed in 1988, sought to challenge his sentence under § 2241, arguing the sentencing court failed to make a drug amount determination or state reasons for the sentence. However, the Court found Browning failed to show that relief under 28 U.S.C. § 2255 was inadequate or ineffective, as required to proceed under § 2241, and affirmed the district court's dismissal of his application.

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    Filed: 2016-01-26 Precedential Status: Non-Precedential Docket: 15-1425

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Elrader Browning Jr.'s application for relief under 28 U.S.C. § 2241. Browning, a federal prisoner serving a life sentence imposed in 1988, sought to challenge his sentence under § 2241, arguing the sentencing court failed to make a drug amount determination or state reasons for the sentence. However, the Court found Browning failed to show that relief under 28 U.S.C. § 2255 was inadequate or ineffective, as required to proceed under § 2241, and affirmed the district court's dismissal of his application.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    72 views3 pages

    Browning v. Oliver, 10th Cir. (2016)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Elrader Browning Jr.'s application for relief under 28 U.S.C. § 2241. Browning, a federal prisoner serving a life sentence imposed in 1988, sought to challenge his sentence under § 2241, arguing the sentencing court failed to make a drug amount determination or state reasons for the sentence. However, the Court found Browning failed to show that relief under 28 U.S.C. § 2255 was inadequate or ineffective, as required to proceed under § 2241, and affirmed the district court's dismissal of his application.

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    of 3

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    January 26, 2016

    TENTH CIRCUIT

    Elisabeth A. Shumaker
    Clerk of Court

    ELRADER BROWNING, JR.,


    Petitioner - Appellant,
    No. 15-1425
    (D.C. No. 1:15-CV-01534-LTB)
    (D. Colo.)

    v.
    JOHN OLIVER,
    Respondent - Appellee.

    ORDER AND JUDGMENT*

    Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.

    Elrader Browning, Jr., a federal prisoner proceeding pro se, applied for relief
    under 28 U.S.C. 2241 in the United States District Court for the District of Colorado.
    The district court denied his application because he failed to show that the remedy
    available to him under 28 U.S.C. 2255 was inadequate or ineffective to challenge his

    After examining the briefs and appellate record, this panel has determined unanimously
    that oral argument would not materially assist in 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.

    sentence. Exercising jurisdiction under 28 U.S.C. 1291, we affirm the dismissal of his
    application.
    Mr. Browning is serving a life sentence imposed in 1988 by the United States
    District Court for the Central District of California after he was convicted of multiple
    drug-distribution charges. Since that time he has filed a motion for relief under 2255
    and two separate motions under Fed. R. Crim. P. 35. He now seeks relief under
    28 U.S.C. 2241, arguing that his sentence is defective because the sentencing court
    failed to make a drug-amount determination and failed to state the reasons for his
    sentence under 18 U.S.C. 3553(a).
    A petition brought under 28 U.S.C. 2241 typically attacks the execution of a
    sentence rather than its validity and must be filed in the district where the prisoner is
    confined. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal
    quotation marks omitted). A 2255 motion, on the other hand, is generally the
    exclusive remedy for a federal prisoner seeking to attack the legality of detention, and
    must be filed in the district that imposed the sentence. Id. (brackets and internal
    quotation marks omitted). Although 2255s savings clause permits a federal prisoner to
    proceed under 2241 if a 2255 motion is inadequate or ineffective to test the legality
    of his detention, 28 U.S.C. 2255(e), that exception will rarely be available to challenge
    a conviction or sentence. See Brace, 634 F.3d at 1169. The petitioner bears the burden
    of demonstrating that the remedy in 2255 is inadequate or ineffective. Id.

    Mr. Browning argues he may proceed under the savings clause because, in
    denying one of his Rule 35 motions, the sentencing court ignored the same two issues he
    raises in his 2241 application. But a district courts failure to address an argument can
    easily be challenged on appeal; and we fail to see how an error in a Rule 35 proceeding
    would establish the ineffectiveness or unavailability of the 2255 remedy. The mere fact
    that his 2255 motion would be unsuccessful or that he would be precluded from filing a
    second 2255 motion does not render 2255 inadequate or ineffective. See Cleaver v.
    Maye, 773 F.3d 230, 233 (10th Cir. 2014). Mr. Browning has failed to show that his
    present claim is permitted under the savings clause.
    We AFFIRM the judgment of the district court.
    ENTERED FOR THE COURT

    Harris L Hartz
    Circuit Judge

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