UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT D. GRAY,

Petitioner - Appellant,

v.

N. L. CONNOR, Warden,

Respondent - Appellee.	No. 02-3288

D.C. No. 01-CV-3446-RDR

(D. Kansas)

ORDER AND JUDGMENT*

Before EBEL, LUCERO and O'BRIEN, Circuit Judges.

Robert D. Gray, an inmate at the United States Penitentiary in Leavenworth, Kansas, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241 in the District Court for the District of Kansas. Gray wishes to retroactively challenge his sentence in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court dismissed Gray's petition as improperly filed under § 2241. For substantially the same reasons as stated by the district court in its Order of July 1, 2002, dismissing the appeal, we AFFIRM the dismissal.

Petitioner also moves this court to grant summary reversal due to the Respondent N.L. Connor's failure to file a response brief. We deny this motion because the Federal Rules of Appellate Procedure provide no such remedy for the failure to file a response brief. See Fed. R. App. P. 31 (consequence of appellee's failure to file response brief is waiver of right to oral argument without the court's permission).

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge