UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT LEE WINFIELD,

Petitioner - Appellant,

v.

M.E. RAY,

Respondent - Appellee.

No. 02-3284

(Kansas)

(D.Ct. No. 01-3354-RDR)

ORDER AND JUDGMENT*

Before HENRY, ANDERSON, and O'BRIEN, 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.

Mr. Robert Lee Winfield, Jr., a federal inmate appearing pro se1, appeals the district court's denial of his habeas corpus petition brought under 28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. § 2253, we affirm.

In 1996, Mr. Winfield2 was convicted in the United States District Court for the Eastern District of Virginia of several offenses, including engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. His convictions were affirmed. United States v. Winfield, 139 F.3d 896 (4th Cir. March 5, 1998) (per curiam) (unpublished table decision). He then applied to the district court for relief under 28 U.S.C. § 2255. The request was denied and the denial was affirmed by the Fourth Circuit. Some time later, the United States Supreme Court decided Richardson v. United States, 526 U.S. 813 (1999), in which it held "a jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some 'continuing series of violations' but also that the defendant committed each of the individual 'violations' necessary to make up that 'continuing series.'" 526 U.S. at 815.

In support of his 28 U.S.C. § 2241 petition Mr. Winfield claims he is actually innocent.3 That claim derives from retroactive application of Richardson which announced a new rule of substantive law.4 His jury was not instructed as Richardson later required.5 The district court concluded he failed to show an inadequate or ineffective § 2255 remedy and that he did not make the requisite showing of actual innocence.

A § 2241 petition for a writ of habeas corpus and a motion for sentencing relief under § 2255 have distinct purposes and are not interchangeable. The § 2241 petition "attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined." Id. Whereas "[a] 28 U.S.C. § 2255 petition attacks the legality of detention and must be filed in the district that imposed the sentence." Id. (internal citations omitted). Unless § 2255 remedy is inadequate or ineffective, it is the exclusive remedy for testing the legality of the detention. 28 U.S.C. § 2255. See also Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam), cert. denied, 377 U.S. 980 (1964).

Although nominally brought under 28 U.S.C. § 2241, Mr. Winfield presents a quintessential § 2255 claim; he is challenging the validity, rather than the execution, of his conviction and sentence. We have previously held that the restrictions on filing successive § 2255 motions do not render the § 2255 remedy inadequate or ineffective. See Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999). Nor do the denials of relief in previous § 2255 proceedings indicate the inadequacy or ineffectiveness of this remedy. See Williams, 323 F.2d at 673. Because he has an adequate and effective remedy under § 2255 in the district where he was sentenced, § 2241 is inappropriate for this case. The district court's denial of the petition was therefore correct.

AFFIRMED.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge