UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENNIE C. WILLIAMS,

Petitioner - Appellant,

v.

EDWARD J. GALLEGOS, Warden, USP-Leavenworth,

Respondent - Appellee.

No. 05-3346

(D. Kansas)

(D.Ct. No. 05-CV-3256-RDR)

ORDER AND JUDGMENT*

Before KELLY, O'BRIEN, and TYMKOVICH, 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.

In 1995, Bennie C. Williams was convicted in the United States District Court for the Northern District of Florida for conspiracy to possess with intent to distribute cocaine and crack cocaine and sentenced to life imprisonment. His conviction and sentence were affirmed by the eleventh circuit in 1997. In 1998, he filed a writ of habeas corpus under 28 U.S.C. § 2255 in the Florida district court claiming ineffective assistance of counsel and violation of due process. His petition was denied. Williams now seeks habeas corpus relief under 28 U.S.C. § 2241,1 alleging his sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), because the facts upon which the district court enhanced his sentence were not proven beyond a reasonable doubt. The district court, sua sponte, issued an order requiring Williams to show cause why his petition should not be dismissed for lack of jurisdiction; specifically, it directed Williams to show why his remedy under 28 U.S.C. § 2255 "was inadequate or ineffective."2 (R. Doc. 3.) In response, Williams argued this case qualified for review under 28 U.S.C. § 2241 pursuant to the savings clause found in 28 U.S.C. § 2255. The district court did not further address its jurisdiction. Rather, it dismissed Williams' petition based on the fact that Blakely and Booker do not apply retroactively to convictions that were final at the time these cases were decided. See United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005) (holding Blakely does not apply retroactively to convictions that were final when that case was decided on June 24, 2004) and United States v. Bellamy, 411 F.3d 1182 (10th Cir. 2005) (holding that Booker, does not apply retroactively to convictions that were final at the time it was decided on January 12, 2005).

A petition under 28 U.S.C. § 2255 attacks the legality of a prisoner's detention pursuant to a federal court judgment and must be filed in the district court that imposed the sentence. Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000). Section 2241 "is not an additional, alternative, or supplemental remedy to 28 U.S.C. § 2255." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). See Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963). Rather, relief is available under 28 U.S.C. § 2241 only if Williams demonstrates the remedy under § 2255 is "inadequate or ineffective" to challenge the validity of his judgment or sentence. Bradshaw, 86 F.3d at 166. See also Williams, 323 F.2d at 673 (§ 2255 remedy "supplants habeas corpus, unless it is shown to be inadequate or ineffective to test the legality of the prisoner's detention.")	The "[f]ailure to obtain relief under § 2255 does not establish that the remedy so provided is either inadequate or ineffective." Williams, 323 F.2d at 673 (quotations omitted). Neither does the fact that Williams may be procedurally barred from bringing a second or successive petition under § 2255. See Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).

Because Williams is attacking the legality of his sentence and has not demonstrated that the remedy under 28 U.S.C. § 2255 is "inadequate or ineffective," § 2255 is his exclusive remedy.3 Consequently, the district court lacked jurisdiction to consider Williams' claim. We therefore REMAND this case to the district court for DISMISSAL due to lack of jurisdiction.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge