Mathison v. Berkebile

Filing 21

MEMORANDUM OPINION AND ORDER denying without prejudice 6 Motion to Dismiss for Lack of Jurisdiction (Respondent is allowed to brief the issue of judicial estoppel by December 31, 2013); granting 12 Motion for Leave to Proceed in forma pauperis; holding in abeyance 4 Motion for Bail pending the Court's consideration of Respondent's submission regardinge estoppel. Signed by U. S. District Judge Lawrence L. Piersol on 12/20/13. (Attachments: # 1 9/17/08 Mathison pro se petition pursuant to 28 USC 2241, # 2 10/14/08 Oppotision to Motion for Release in Mathison v. Wiley, # 3 3/26/09 Order and Judgment in Mathison v. Wiley) (DJP)

Case 1:08-cv-02005-ZLW Document 25-1 Filed 03/26/09 USDC Colorado _.r~JI. of 4
Case: 08-1377 Document: 01017928808 Date Filed: 03ItR1~QQ%taFe~~;.frt of Appeals
Tenth Circuit

March 26, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

EUGENE H. MATHISON,
Petitioner-Appellant,
No. 08-1377
(D.C. No.1 :08-CV -02005-ZL W)
(D. Colo.)

v.
R. WILEY, Warden,
Respondent- Appellee.

ORDER AND JUDGMENT"

Before BRISCOE, MURPHY, and GORSUCH, 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.I(G). The case is
therefore ordered submitted without oral argument.
Eugene Mathison appeals an order entered by the United States District
Court for the District of Colorado denying his application under 28 U.S.C. § 2241
for writ of habeas corpus and dismissing the action. We affirm.

• This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

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In 1997, Petitioner Mathison was convicted in the United States District
Court for the District of South Dakota of conspiracy, mail fraud, wire fraud, and
money laundering. On direct appeal, the United States Court of Appeals for the
Eighth Circuit affirmed. See United States v. Mathison, 157 F.3d 541 (8th Cir.

1998), cert. denied, 525 U.S. 1089 (1999). In 2000, Petitioner filed his first 28
U.S.C. § 2255 motion in the district court for the District of South Dakota, which
was denied as barred by the one-year statute of limitations. On appeal, the Eight
Circuit denied a certificate of appealability and dismissed. See Mathison v.

United States, No. 01-1078 (8th Cir. June 6, 2001) (unpublished).
In January 2008, while incarcerated at the Federal Prison Camp in
Florence, Colorado, Eugene Mathison filed his first § 2241 petition in the District
of Colorado, setting forth claims challenging his conviction and sentence in the
District of South Dakota. The District of Colorado denied the § 2241 petition,
concluding that the appropriate remedy was under § 2255 in the District of South
Dakota where Petitioner was convicted and sentenced, and not under § 2241 in
the District of Colorado. On appeal, this court affirmed. See Mathison v. Wiley,
281 F. App'x 845 (10th Cir. June 7, 2008) (per curiam).
Then, in November 2008, still while incarcerated at the Federal Prison
Camp in Florence, Colorado, Eugene Mathison filed a second § 2241 petition in
the District of Colorado, once again challenging his conviction and sentence in
the District of South Dakota. The District of Colorado denied the second § 2241
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petition and dismissed the action. The court stated, in relevant part, that the
second § 2241 petition was being denied for the same reasons that resulted in
denial of the first § 2241 petition, i.e., "Mr. Mathison has an adequate and
effective remedy pursuant to 28 U.S.C. § 2255 in the District of South Dakota."

See Mathison v. Wiley, 2008 WL 4569864, at *2 (D. Colo. Oct. 1, 2008)
(unpublished). Petitioner Mathison, proceeding pro se, appeals.
The court reviews de novo the district court's denial of Eugene Mathison's
§ 2241 petition. See Bradshaw v. Story, 86 F.3d 164,166 (lOth Cir. 1996).

Upon review of the record and appellate brief, the court concludes that the
district court correctly denied the second § 2241 petition. It is well settled that a
collateral challenge to a federal conviction or sentence generally must be raised in
a motion to vacate filed in the sentencing court under § 2255, and not in a habeas
petition filed in the court of incarceration under § 2241. And this court agrees
with the district court that Petitioner failed to establish that the remedies available
to him under § 2255 are inadequate or ineffective. See Caravalho v. Pugh, 177
F.3d 1177, 1178 (lOth Cir. 1999) ("Courts have found a remedy under 28 U.S.C.
§ 2255 to be inadequate or ineffective only in extremely limited circumstances.").
Accordingly, the district court's October 1,2008 Order denying Petitioner's
§ 2241 petition and dismissing the action is AFFIRMED. Petitioner's motion for

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leave to proceed informa pauperis is DENIED. All pending motions are

DENIED. The mandate shall issue forthwith.

ENTERED FOR THE COURT
PER CURIAM

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