Lambros v. Maye

Filing 3

MEMORANDUM AND ORDER ENTERED: This action is dismissed for lack of jurisdiction. Signed by Senior District Judge Richard D. Rogers on 5/17/2013. (Mailed to pro se party John Gregory Lambros by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN GREGORY LAMBROS,
Petitioner,
v.

CASE NO.

13-3034-RDR

CLAUDE MAYE, Warden,
USP-Leavenworth, et al.,
Respondents.
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was filed pursuant
to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary,
Leavenworth, Kansas.

The filing fee was paid.

Petitioner seeks to

challenge his federal convictions under § 2241 in this district in
which he is currently confined after having failed to obtain relief
from the sentencing court in another federal judicial district.
Having considered the petition together with the 155 pages of
attached exhibits and relevant published court opinions, the court
finds that petitioner fails to show that his § 2255 remedy was
inadequate or ineffective and, as a result, dismisses this petition
for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Mr. Lambros was convicted by a jury in the United States
District Court for the District of Minnesota of four cocaine-related

1

offenses, including a conspiracy count.

See U.S. v. Lambros, 404

F.3d 1034, 1035 (8th Cir. 2005), cert. denied, 545 U.S. 1135 (2005).
“On direct appeal, (the Eighth Circuit Court of Appeals) vacated the
sentence on the conspiracy count, remanded for resentencing on that
count, and affirmed the conviction in all other respects.”

Id.

(citing U.S. v. Lambros, 65 F.3d 698 (8th Cir. 1995), cert. denied,
516 U.S. 1082 (1996)).

His other convictions were also affirmed.

“On remand, Lambros filed multiple new trial motions pursuant to
Fed.R.Crim.P. 33,” which the district court treated as “a single §
2255 motion and denied all the claims.”

Id.

Thus, petitioner’s

initial § 2255 motion was denied by the sentencing court in 1997.
In the meantime, “Lambros appealed the 360-month prison term to which
he was resentenced,” and the Eighth Circuit affirmed.

See id.

(citing U.S. v. Lambros, 124 F.3d 209 (8th Cir. 1997)(unpublished),
cert. denied, 522 U.S. 1065 (1998)).

“Two subsequent § 2255 motions

filed by Lambros were dismissed by the district court because (the
Eight Circuit Court) had not authorized their filing.”

Id.

In 2001

petitioner began a series of post-judgment motions attempting to
overturn the district court’s denials of habeas relief.

However,

these were construed as successive § 2255 motions, and dismissed
because he had not obtained Eighth Circuit pre-authorization.
(citing

U.S.

v.

Lambros,

40

Fed.Appx.

316

(8th

Id.
Cir.

2002)(unpublished), cert. denied, 537 U.S. 1195 (2003)); Lambros,
404 F.3d at 1037 (“When Lambros filed multiple new trial motions,
2

after our limited remand for resentencing following his conviction,
the district court correctly treated those new trial motions as
seeking § 2255 post-conviction relief.

His subsequent Rule 60(b)

motions and his most recent Rule 59(e) motion were, in reality,
efforts to file successive motions for post-conviction relief.
Those motions were properly denied because Lambros did not have
authorization from this court.”).
In 2012 the United State Supreme Court decided Missouri v. Frye,
132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012).
The Tenth Circuit recently summarized these cases as follows:
Both Frye and Lafler concern the Sixth Amendment right to
the effective assistance of counsel in the plea bargaining
process. Frye held that counsel’s failure to inform his
client of a plea offer may constitute ineffective
assistance of counsel.
132 S.Ct. at 1408, 1410–11.
Lafler held that an attorney who rendered constitutionally
deficient advice to reject a plea bargain was ineffective
where his advice caused his client to reject the plea and
go to trial, only to receive a much harsher sentence. 132
S.Ct. at 1383, 1390–91. In each case, the Court reached
its decision by applying the well-established principles
regarding the assistance of counsel that were initially
set forth in Strickland v. Washington, 466 U.S. 668 (1984).
See Frye, 132 S.Ct. at 1409–11; Lafler, 132 S.Ct. at 1384,
1390–91.
Id.

CLAIMS
Petitioner’s main claim is that based upon Frye and Lafler, he
is entitled to have his convictions and sentences vacated and for
the prosecution to re-offer its plea proposal that he rejected prior
3

to trial.

In support of this claim he alleges that his attorney did

not understand the statutory law and guidelines regarding the
possible sentences, that he received incorrect information1 from his
attorney and the prosecutor during plea negotiations as to the
sentences he could receive on all four counts, and that he was
incorrectly advised that he could be sentenced as a career offender.
He argued in a prior § 2255 motion that he “only had to show that
his attorney failed to communicate pleas offers or failed to give
competent counsel regarding a plea offer.”

He also argued in the

Minnesota sentencing court and to the Eighth Circuit that his claims
were timely under 28 U.S.C. § 2255(f)(3)2 because they were brought
within a year of Frye and Lafler.

He repeats that argument here.

He cited a Ninth Circuit case, which he argued applied Lafler and
Frye retroactively, and asserted that he had thus “made a prima facie
showing” that “Frye and Lafler are retroactive.”
Petitioner’s arguments are not always clearly presented or
consistent with each other or the cases he cites.3

He alleges that

1

Petitioner suggests that his claim of erroneous advice during plea
proceedings is already proven since both plea proposals provided that the only
sentence he could receive for Count One was mandatory life without parole and his
sentence of mandatory life without parole was overturned by the Eighth Circuit.
2

Section 2255(f)(3) pertinently provides that the 1-year period of limitation
shall run from the latest of several dates including “the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.”
3

For example, he argues that the two recent Supreme Court cases upon which
he relies “announced a type of Sixth Amendment violation that was previously
unavailable and thus require[] retroactive application to cases on collateral
review” while acknowledging that they announced an extension of Strickland rather

4

in June 2012 he sought authorization from the Eighth Circuit to file
a successive § 2255 motion that raised the same issues he presents
in the instant § 2241 petition and the U.S. Attorney for the District
of Minnesota was required to respond.

He exhibits many pleadings

and rulings from that case, and requests incorporation of all filings
from his “second or successive § 2255” into this action.

He argues

that his illegal sentence constituted a miscarriage of justice and
that he qualifies for the “actual innocence exception,” apparently
based on the fact that his sentence on one count was overturned.
addition,

petitioner

claims

that

the

sentencing

court

In

denied

effective review of his ineffective assistance of counsel claim when
it re-characterized his new trial motions as his first 2255 motion
without giving him the option to withdraw and denied his next 2255
motion as successive.

He

complains

that the

Eighth

Circuit

erroneously denied authorization for a successive § 2255 motion, did
not make findings of fact and conclusions of law, and refused to hear
his petition for rehearing because preauthorization denials are not
appealable.

Based on these complaints, he contends that the Eighth

Circuit improperly refused to consider his request for a second and
successive § 2255 motion, and that such refusal is one of the
circumstances noted by the Tenth Circuit as rendering the § 2255
remedy inadequate or ineffective.
entitled to relief under § 2241.
than a new rule.

5

He thus contends that he is

STANDARDS
28 U.S.C. § 2255(a) provides:
A prisoner in custody under sentence of a (federal) court
. . . claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or law of the United States . . . , or is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.
Id.

Subsection (e) of Section 2255 provides:
An application for writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief,
by motion, to the court which sentenced him . . . . unless
it also appears that the remedy by motion is inadequate
or ineffective to test the legality of his detention.

Id.

It has long been held in the Tenth Circuit that “[t]he exclusive

remedy for testing the validity of a [federal] judgment and sentence,
unless it is inadequate or ineffective, is that provided for in 28
U.S.C. § 2255.”

Williams v. U.S., 323 F.2d 672, 673 (10th Cir. 1963)

cert. denied 377 U.S. 980 (1964); see also Johnson v. Taylor, 347
F.2d 365, 366 (10th Cir. 1965).

It is the petitioner’s burden to

show that the § 2255 remedy is inadequate or ineffective, and the
§ 2255 remedy has been found to be inadequate or ineffective in only
“extremely limited circumstances.”

Caravalho v. Pugh, 177 F.3d

1177, 1178 (10th Cir. 1999).
The habeas corpus remedy under 28 U.S.C. § 2241 is available
to a prisoner who is “in custody in violation of the Constitution
or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3).
6

However, the § 2241 petition does not ordinarily encompass claims
of unlawful detention based on the conviction or sentence of a federal
prisoner.

The Tenth Circuit has explained the difference between

the two statutory provisions.

“A 28 U.S.C. § 2255 petition attacks

the legality of detention, and must be filed in the district that
imposed the sentence.”
Cir. 1996).

Bradshaw v. Story, 86 F.3d 164, 166 (10th

By contrast, the § 2241 petition “attacks the execution

of a sentence rather than its validity.”

McIntosh v. U.S. Parole

Com’n, 115 F.3d 809 811–12 (10th Cir. 1997); Bradshaw, 86 F.3d at 166.
A § 2241 petition “is not an additional, alternative, or supplemental
remedy to the relief afforded by motion in the sentencing court under
§ 2255.”

Williams, 323 F.2d at 673.

Section 2255 motions are subject to two significant statutory
“gate-keeping” restrictions: a one-year statute of limitations, §
2255(f); and a ban on second and successive motions, § 2255(e).

A

habeas petitioner may not avoid these restrictions by simply bringing
his claims under § 2241.

DISCUSSION
This petition is deficient in several ways.

First, arguments

are not properly raised in a habeas corpus petition by merely
incorporating numerous pleadings from another case.

For this reason

and based upon local court rules, petitioner could be required to
submit an amended petition upon court-approved forms.
7

However, an

amended petition is not required because it is apparent from the
materials filed that this court has no jurisdiction over petitioner’s
claims.
Many of petitioner’s claims are challenges to rulings made by
the Minnesota sentencing court and the Eighth Circuit on his prior
§ 2255 motions.

He has already presented the arguments he seeks to

incorporate into this action to the appropriate courts including that
his recent § 2255 motion based on Frye and Lefler should be considered
timely and authorized under § 2255(f)(3).

To the extent that

petitioner seeks to have this court overturn decisions made by those
courts of equal or greater authority, he provides no legal basis for
this court to take such action and the court is aware of none.
Even if this court had such authority under § 2241, it would reject
petitioner’s Frye/Lafler claims based upon persuasive reasoning and
precedent in recent Tenth Circuit opinions.

In United States v.

Lawton, 2012 WL 6604576, at *3 (10th Cir. Dec.19, 2012), the Tenth
Circuit emphasized the conditional language in § 2253(f)(3): “if that
right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review,” and held
that neither Lafler nor Frye established a new rule of constitutional
law to be applied retroactively to cases on collateral review.
reasoning in Lawton is persuasive:
[N]either decision announced a “newly recognized” right.
Several circuit courts have so held. See In re King, 697
F.3d 1189, 1189 (5th Cir. 2012)(per curiam); Hare v. United
8

The

States, 688 F.3d 878–80 (7th Cir. 2012); Buenrostro v.
United States, 697 F.3d 1137, 1140 (9th Cir. 2012); In re
Arras, No. 12–2195 (10th Cir. Dec. 11, 2012)(denying
authorization to file a second or successive § 2255 motion
because neither Lafler nor Frye established a new rule of
constitutional law); In re Perez, 682 F.3d 930, 932–34
(11th Cir. 2012). Indeed, before Lafler and Frye this
court granted habeas relief on such a claim in Williams
v. Jones, 571 F.3d 1086, 1091 (10th Cir. 2009), relief that
we could not have granted if based on a newly recognized
right, see Danforth v. Minnesota, 552 U.S. 264, 266 & n.
1, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). And the Supreme
Court could not have granted relief in Lafler itself if
it were recognizing a new right. See Lafler, 132 S.Ct.
at 1395–96 (Scalia, J., dissenting)(pointing out that
habeas relief cannot be granted under 28 U.S.C. § 2254
unless the state court's decision was contrary to, or
involved an unreasonable application of, clearly
established federal law as determined by the Supreme
Court). Thus, the extension of the limitations period
provided by § 2255(f)(3) did not apply to Defendant’s case.
Lawton, 2012 WL at *3.

Another court recently observed in U.S. v.

Williams, 2013 WL 139635 (S.D.N.Y. Jan. 11, 2013):
Since Frye was decided, “nearly every court to have
addressed the issue has held that Frye did not create a
new constitutional right to be applied retroactively to
cases on collateral review; it merely applied Strickland
v. Washington . . . to a particular set of circumstances,
i.e., the obligation of defense counsel to advise a
defendant of plea offers.” Ortiz v. United States, No.
12 Civ. 5326, 2012 WL 5438938, at *2 (E.D.N.Y. Nov.7, 2012)
(compiling cases).
Then the Tenth Circuit held as follows in In re Graham, ___F.3d___,
2013 WL 1736588 (10th Cir. Apr. 23, 2013):
any doubt as to whether Frye and Lafler announced new rules
is eliminated because the Court decided these cases in the
post conviction context.” Perez, 682 F.3d at 933; see
also Hare, 688 F.3d at 879. Lafler recognized that for
a federal court to grant habeas relief, the state court's
decision must be contrary to or an unreasonable
application of clearly established federal law, and it
9

held that the state court's failure to apply Strickland
was contrary to clearly established federal law.
See
Lafler, 132 S.Ct. at 1390; see also Williams v. Jones, 571
F.3d 1086, 1090–91 (10th Cir.2009)(recognizing Strickland
as clearly established federal law with regard to a habeas
claim that counsel was constitutionally deficient when he
persuaded the applicant to reject a plea bargain). But
where the law is clearly established, then the rule “must,
by definition, have been an old rule,” not a new one.
Perez, 682 F.3d at 933; see also Hare, 688 F.3d at 879.
Id.

Thus, in Graham the Tenth Circuit expressly held that neither

Frye nor Lafler established a new rule of constitutional law.

It

necessarily follows that the condition in § 2255(f)(3) is not met
by Frye and Lafler.

Accordingly, § 2253(f)(3) does not apply in

petitioner’s case.
The underlying claims that petitioner seeks to have considered
are undoubtedly challenges to his federal convictions and sentences.
The Tenth Circuit has clearly admonished that the “plain language
of § 2255 means what it says and says what it means: a prisoner can
proceed to § 2241 only if his initial § 2255 motion was itself
inadequate or ineffective to the task of providing petitioner with
a chance to test his sentence or conviction.”
636 F.3d 578, 587 (10th Cir. 2011).

Prost v. Anderson,

As noted, in this § 2241 petition

Mr. Lambros attempts to raise the same claims that he already raised
in motions under § 2255 in the sentencing court and on appeal to the
Eighth Circuit.

He contends that relief is available under § 2241

because the Minnesota district court rendered the § 2255 remedy
ineffective by refusing to consider his second and successive § 2255

10

motions.

However,

Mr.

Lambros

completely

ignores

that

the

sentencing court’s, or the appropriate appellate court’s, refusal
to consider claims that are second and successive or untimely, has
clearly been held not to establish that the § 2255 remedy was
inadequate or ineffective.

The Tenth Circuit recently discussed a

situation similar to that of petitioner’s:
The issue on appeal is whether Mr. Sines had an adequate
and effective remedy under § 2255. Only in rare instances
will § 2255 fail as an adequate or effective remedy to
challenge a conviction or the sentence imposed. . . . In
Caravalho v. Pugh, 177 F.3d 1177 (10th Cir. 1999), we held
that the remedy under § 2255 is not inadequate or
ineffective merely because the statute greatly restricts
second or successive motions.
We noted only a few
circumstances suggested by courts of appeal as rendering
§ 2255 inadequate or ineffective: abolition of the
original sentencing court; the sentencing court’s refusal
to consider, or inordinate delay in considering, the § 2255
motion; and the inability of a single sentencing court to
grant complete relief when sentences have been imposed by
multiple courts. See id. at 1178. Mr. Sines’s argument
that § 2255 was inadequate and ineffective rests on his
assertion that the district court’s dismissal of his § 2255
motion as untimely amounted to a refusal to consider it.
He contends that his motion had been timely under 28 U.S.C.
§ 2255(f)(3) because he filed it within a year of the
Supreme Court’s decision in Chambers.
We are not persuaded.
A district court’s erroneous
decision on a § 2255 motion does not render the § 2255
remedy inadequate or ineffective.
After all, the
decision could be appealed. . . .
Having failed to
establish that the remedy provided in § 2255 was inadequate
or ineffective, Mr. Sines could not proceed under § 2241.
Sines v. Wilner, 609 F.3d 1070, 1072-74 (10th Cir. 2010).

Under the

reasoning in Sines, even though Mr. Lambros was precluded from
proceeding on another § 2255 motion by the statute-of-limitations

11

and successive-writ provisions of § 2255, these circumstances do not
establish that the § 2255 remedy was inadequate.

See also Caravalho,

177 F.3d at 1178–1179 (finding § 2255 remedy was not ineffective or
inadequate where procedural obstacles set forth in Antiterrorism and
Effective

Death

Penalty

Act

barred

petitioner

from

bringing

successive § 2255 motion); see Bradshaw, 86 F.3d at 166 (“Failure
to obtain relief under 2255 does not establish that the remedy so
provided is either inadequate or ineffective.”)(quotation omitted).
It plainly appears that Mr. Lambros has resorted to all the
remedies available to him for challenging his federal convictions
and sentences.

In Prost, the Tenth Circuit meticulously described

the range of available remedies:
Even though a criminal conviction is generally said to be
“final” after it is tested through trial and appeal, . .
Congress has chosen to afford every federal prisoner the
opportunity to launch at least one collateral attack to
any aspect of his conviction or sentence. . . .
But Congress didn't stop there. If a prisoner’s initial
§ 2255 collateral attack fails, . . Congress has indicated
that it will sometimes allow a prisoner to bring a second
or successive attack. Recognizing the enhanced finality
interests attaching to a conviction already tested through
trial, appeal, and one round of collateral review,
however, Congress has specified that only certain claims
it has deemed particularly important—those based on newly
discovered evidence suggestive of innocence, or on
retroactively applicable constitutional decisions—may be
brought in a second or successive motion. See 28 U.S.C.
§ 2255(h); supra n. 2.
Yet, even here Congress has provided an out. A prisoner
who can’t satisfy § 2255(h)’s conditions for a second or
successive motion may obviate § 2255 altogether if he can
show that “the remedy by motion” provided by § 2255 is
12

itself “inadequate or ineffective to test the legality of
his detention.”
28 U.S.C. § 2255(e).
In these
“extremely limited circumstances,” (citation omitted), a
prisoner may bring a second or successive attack on his
conviction or sentence under 28 U.S.C. § 2241, without
reference to § 2255(h)’s restrictions. It is, however,
the prisoner’s burden to show that these conditions,
prescribed by § 2255(e)’s so-called “savings clause,”
apply to his case. See Miller v. Marr, 141 F.3d 976, 977
(10th Cir. 1998).
See Prost, 636 F.3d at 583-84.

The Court in Prost then meticulously

set forth a relatively simple test for when the “savings clause”
applies, and their underlying rationale:
The relevant . . . measure, we hold, is whether a
petitioner’s argument challenging the legality of his
detention could have been tested in an initial § 2255
motion. If the answer is yes, then the petitioner may not
resort to the savings clause and § 2241. . . .
. . . . Section 2255(e) expressly distinguishes between
the terms remedy and relief, stating that § 2241 is not
available to a petitioner simply because a “court has
denied him relief”; to invoke the savings clause, it must
“also appear[ ] that the remedy by motion is inadequate
or ineffective.” . . . Here again, the clause emphasizes
its concern with ensuring the prisoner an opportunity or
chance to test his argument. Here again it underscores
that with this opportunity comes no guarantee about
outcome or relief. The ultimate result may be right or
wrong as a matter of substantive law, but the savings
clause is satisfied so long as the petitioner had an
opportunity to bring and test his claim.
Recognizing these features of the savings clause's plain
language, we have long and repeatedly said that a
petitioner's “[f]ailure to obtain relief under § 2255 does
not establish that the remedy so provided is either
inadequate or ineffective,” . . . and that an “erroneous
decision on a § 2255 motion” doesn't suffice to render the
§ 2255 remedy itself inadequate or ineffective, (citations
omitted). . . .
. . . [I]t is evident that a prisoner generally is entitled
13

to only one adequate and effective opportunity to test the
legality of his detention, in his initial § 2255 motion.
If the rule were otherwise—if the § 2255 remedial mechanism
could be deemed “inadequate or ineffective” any time a
petitioner is barred from raising a meritorious second or
successive challenge to his conviction—subsection (h)
would become a nullity, “a meaningless gesture.” United
States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999). If
the rule were otherwise—if, say, courts were to read
subsection (h) as barring only losing second or successive
motions—the statute's limitations would be effectively
pointless and, as the Second Circuit has recognized,
Congress would have “accomplished nothing at all in its
attempts—through statutes like the AEDPA—to place limits
on federal collateral review.” (Citations omitted).
. . . Federal prisoners seeking to take advantage of new
rulings of constitutional magnitude that would render
their convictions null and void are not always allowed to
do so in second or successive motions. See, e.g., 28
U.S.C. § 2255(h)(permitting federal prisoners to take
advantage only of new constitutional rules that the
Supreme Court has expressly declared to have retroactive
application); see also Dodd v. United States, 545 U.S. 353,
125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). . . .
Id. at 584-87.
In this case, as in Prost, Mr. Lambros alleges no facts to
dispute that his initial § 2255 motion was “up to the job of testing
the question” of whether his conviction should be overturned because
he

was

provided

proceedings.

erroneous

sentencing

information

during

plea

While he complains that motions he filed raising

claims that should have been brought under § 2255 were treated by
the sentencing court as his first § 2255 motion, he alleges no facts
indicating that those claims were not considered.
reasoning

of

the

Court

in

Prost,

the

fact

To paraphrase the
that

§

2255(h)’s

restrictions on second and successive motions barred Mr. Lambros from
14

trying a Frye/Lafler argument nearly a decade after his convictions
and long after pursuing his initial § 2255 motion, does not mean that
the § 2255 remedial regime is inadequate or ineffective to test such
an argument.

“It only means that, in Congress’s considered view,

finality concerns now predominate and preclude relitigation of Mr.
(Lambros’s) criminal judgment.”

Id.

Like Mr. Prost, Mr. Lambros obviously believes that “a federal
prisoner should have recourse to § 2241 through the savings clause
any time he can demonstrate that his initial § 2255 proceeding
finished before the Supreme Court announced a new (interpretation)
that would likely undo his conviction,” and that “he should be excused
for failing to bring a “novel” argument for relief that the Supreme
Court hadn’t yet approved. . . .”

The Tenth Circuit in Prost rejected

this position:
We cannot agree that the absence of Santos from the U.S.
Reports at the time of a prisoner's first § 2255 motion
has anything to do with the question whether § 2255 was
an inadequate or ineffective remedial mechanism for
challenging the legality of his detention.
As we've
explained, it is the infirmity of the § 2255 remedy itself,
not the failure to use it or to prevail under it, that is
determinative. To invoke the savings clause, there must
be something about the initial § 2255 procedure that itself
is inadequate or ineffective for testing a challenge to
detention. . . .
. . . The § 2255 remedial vehicle was fully available and
amply sufficient to test the argument, whether or not Mr.
Prost thought to raise it. And that is all the savings
clause requires.
. . . [I]n subsection (h) Congress identified the excuses
it finds acceptable for having neglected to raise an
15

argument in an initial § 2255 motion. Failing to pursue
novel statutory interpretations is not on that list,
though Congress was aware situations like this one might
arise and fully intended § 2255(h) to bar otherwise
meritorious successive petitions.
The simple fact is
that Congress decided that, unless subsection (h)'s
requirements are met, finality concerns trump and the
litigation must stop after a first collateral attack. .
. .
. . . [T] the plain language of the savings clause does
not authorize resort to § 2241 simply because a court errs
in rejecting a good argument.
Id.

at 588-90.
Having considered all petitioner’s allegations and complaints

together with the relevant legal authority, the court finds that Mr.
Lambros fails to establish that his § 2255 remedy was inadequate or
ineffective.

Consequently, he has failed to establish that this

court has jurisdiction to hear his challenges to his convictions and
sentences under § 2241.

See Gibson v. Fleming, 28 Fed.Appx. 911,

913 (10th Cir. 2001)(court should have dismissed § 2241 habeas
petition without prejudice for lack of jurisdiction where petition
challenged federal conviction or sentence and petitioner did not show
§ 2255 remedy was inadequate or ineffective).
Finally, the court hereby certifies, pursuant to 28 U.S.C. §
1951(a)(3), that any appeal from this Order would not be taken in
good faith, and therefore in forma pauperis status is denied for the
purpose of an appeal.

See Coppedge v. United States, 369 U.S. 438,

444–45 (1962).
IT IS THEREFORE BY THE COURT ORDERED that this action is

16

dismissed for lack of jurisdiction.
IT IS SO ORDERED.
DATED:

This 17th day of May, 2013, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

17