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T.C. PETERSON, Warden,


No. 01-6412

(W.D. Okla.)

(D.Ct. No. 01-CIV-1055-C)


Before BARRETT, PORFILIO, and BRORBY, Senior Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Ricky Dean Wilcox, appearing pro se, appeals denial of his 28 U.S.C. § 2241 petition for habeas corpus relief by the district court for the Western District of Oklahoma. After careful consideration, we dismiss Mr. Wilcox's appeal.

Mr. Wilcox pleaded guilty to robbery of a postal facility in violation of 18 U.S.C. § 2114 and to using and carrying a sawed-off shotgun during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). A district court for the District of Kansas sentenced Mr. Wilcox to forty-eight months on the robbery conviction and a mandatory 120 months on the firearms conviction. Mr. Wilcox did not appeal his sentence. He did bring a 28 U.S.C. § 2255 motion, which was denied by the district court in Kansas and then affirmed on appeal by this court. United States v. Wilcox, 1998 WL 817748, at *1 (10th Cir. Nov. 27, 1998) (unpublished opinion). Mr. Wilcox then filed a motion for authorization to file a second § 2255 motion, which this court again dismissed. Next, Mr. Wilcox filed for relief under 28 U.S.C. § 2241 in the Western District of Oklahoma, where he is currently incarcerated, asking his petition not be construed as another subsequent § 2255 motion. The magistrate judge found § 2241 relief was not available and recommended dismissing the motion without prejudice to allow Mr. Wilcox to decide whether to restyle his motion as a request to file a successive § 2255 petition. Adopting a thorough and well-reasoned magistrate judge's recommendation over the objections of Mr. Wilcox, the district court dismissed the § 2241 petition.

We have thoroughly reviewed Mr. Wilcox's arguments, the magistrate judge's Report and Recommendation, the district court's decision, and the record. The magistrate judge's Report and Recommendation of August 28, 2001 accurately sets forth all relevant facts and controlling law. In this appeal, Mr. Wilcox merely restates arguments previously rejected by district courts in Kansas and Oklahoma, and by this court. Forgoing unnecessary repetition, we adopt the recommendation of the magistrate judge to dismiss Mr. Wilcox's petition.

Mr. Wilcox also moves to proceed in forma pauperis. To do so, Mr. Wilcox must demonstrate "a financial inability to pay the required fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal." McIntosh v. United States Parole Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997) (quotation marks and citations omitted). We agree with the district court Mr. Wilcox's appeal fails to present a non-frivolous argument.

For these reasons, we AFFIRM the district court's order of dismissal, and DISMISS Mr. Wilcox's appeal. Mr. Wilcox's motion to proceed in forma pauperis is denied.

Entered by the Court:


United States Circuit Judge

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*. 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.

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