                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             April 17, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 ZACK ZAFER DYAB,

       Petitioner - Appellant,
                                                             No. 19-3010
 v.                                                 (D.C. No. 5:18-CV-03290-JWL)
                                                               (D. Kan.)
 NICOLE ENGLISH, Warden,

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.**
                  _________________________________

      In 2010, Petitioner Zack Zafer Dyab, a federal prisoner proceeding pro se,

pleaded guilty to money laundering in violation of 18 U.S.C. § 1957 and conspiracy

to commit wire fraud in violation of 18 U.S.C. § 371. He has since filed three

unsuccessful motions for post-conviction relief under 28 U.S.C. § 2255. Undeterred,

he now turns to another statute—28 U.S.C. § 2241—in an effort to seek post-

conviction relief a fourth time. But unfortunately for Petitioner, the district court


      *
         This order and judgment is not binding precedent, except under the doctrines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.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
correctly determined that it lacked statutory jurisdiction to adjudicate his § 2241

petition, and so we must affirm its order dismissing his petition on that basis.

      To understand why, first consider that federal prisoners like Petitioner can’t

simply turn to § 2241 as a matter of choice when collaterally attacking their

convictions or sentences. That statute is “generally reserved for complaints about the

nature of a prisoner’s confinement”—i.e., the conditions of his confinement—“not

the fact of his confinement.” Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)

(emphases in original). For that reason, federal prisoners must generally utilize

§ 2255 if they hope “to attack the legality of [their] conviction[s] or sentence[s].” Id.

Indeed, through § 2255, “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.” Id. at 583.

      The problem many of those prisoners face, however, is that § 2255 heavily

constrains the instances in which they can file “second or successive” collateral

attacks on their convictions or sentences. 28 U.S.C. § 2255(h). To get that extra bite

at the apple, a federal prisoner’s claim must involve “either newly discovered

evidence strongly suggestive of innocence or new rules of constitutional law made

retroactive by the Supreme Court.” Prost, 636 F.3d at 581; see also 28 U.S.C.

§ 2255(h). Absent one of those two narrow circumstances, the federal prisoner is

almost always unable to move forward on his or her additional request for relief.

         “Yet, even here Congress has provided an out.” Prost, 636 F.3d at 584. A

federal prisoner can bypass the stringent requirements on second or successive

                                            2
motions if he can establish that § 2255 “is inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. § 2255(e). Under this “savings clause,” which

applies in only “extremely limited circumstances,” Caravalho v. Pugh, 177 F.3d

1177, 1178 (10th Cir. 1999), “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.” Prost, 636 F.3d at 584. In such a scenario, § 2241 shifts gears from its

usual function and “allows a federal prisoner . . . to challenge the legality of his

detention, not just the conditions of his confinement.” Id. at 581.

      Petitioner’s desire to utilize § 2241 this fourth time around stems from this

savings clause. Specifically, Petitioner claims that his conviction and sentence for

money laundering—ten years’ imprisonment and a hefty $6.4 million restitution

payment—are invalid under the Supreme Court’s decision in United States v. Santos,

553 U.S. 507 (2008).1 The Santos decision, however, did not announce a new rule of

constitutional law, much less one that the Supreme Court made retroactive; rather,

Santos only interpreted a statute similar to the one under which Petitioner was

convicted for money laundering. See Prost, 636 F.3d at 581 (observing that Santos

announced “a new statutory interpretation” and not a new, retroactive rule of

constitutional law); see also Santos, 553 U.S. at 514 (plurality opinion) (announcing

the holding of Santos). Thus, because Petitioner has not directed us to any new



      1
         Petitioner’s reasons for believing that Santos invalidates his conviction and
sentence for money laundering are not relevant to our disposition of his appeal, so we
refrain from discussing them and pass no judgment upon them.
                                            3
evidence strongly suggestive of innocence, he cannot bring his Santos-based

argument in a successive § 2255 motion. But that doesn’t mark the end of the road

for him, he argues, because § 2255 is inadequate or ineffective to test his detention,

conviction, and sentence on the basis of Santos. Indeed, although the Supreme Court

issued that decision two years before Petitioner pleaded guilty, Petitioner contends

that governing circuit law interpreting Santos “was evolving” from the time his case

began. He thus seems to be claiming that he was unequivocally barred from

prevailing on his Santos-based argument until circuit law interpreting that decision

developed in his favor, which was at some point after he filed his first § 2255 motion.

And as a result, he maintains that he should be able to utilize the savings clause and

§ 2241 to launch a fourth collateral attack on his conviction by relying on Santos and

its progeny.

      Even assuming arguendo Petitioner is correct that Santos and its progeny

invalidated his conviction and sentence for money laundering only after he filed his

first § 2255 motion, our decision in Prost nonetheless forces us to conclude that

Petitioner cannot now pursue this argument through a § 2241 petition. In Prost, we

held that “[t]he relevant metric or measure” for determining whether § 2255 is

adequate or effective is “whether a petitioner’s argument challenging the legality of

his detention could have been tested in an initial § 2255 motion.” Prost, 636 F.3d at

584 (emphasis added). “If the answer is yes, then the petitioner may not resort to the

savings clause and § 2241.” Id. And significantly, an argument could have been

“tested” if “the petitioner had an opportunity to bring” it, and that remains true even

                                           4
if the argument “would have been rejected on the merits at the district court and

circuit panel levels because of adverse circuit precedent.” Id. at 584, 590 (emphasis

in original). Thus,

      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.

Id. at 589 (emphases in original).

      Coincidentally, the Prost court then held that the petitioner in that case could

not pursue a Santos-based argument in a § 2241 petition even though adverse circuit

precedent would have prevented him from prevailing on it in his earlier § 2255

motion. See id. at 590–93. In so holding, the Court explained that the petitioner was

“entirely free to raise and test a Santos-type argument in his initial § 2255 motion”

even though that argument likely would have failed at the time. Id. at 590.

      Prost controls here. Even if Petitioner’s Santos argument would have failed at

the time he filed his initial § 2255 motion, the fact remains that he could have raised

that argument when filing his initial motion. Petitioner thus fails to direct us to any

evidence that § 2255 served as an “inadequate or ineffective remedial vehicle for

testing” the merits of his argument. Id. at 590 (emphases in original). Put

differently, the savings clause ensures that federal prisoners who can’t comply with

§ 2255 are “provided with at least one opportunity to challenge their detentions” via a

collateral attack, id. at 588 (emphasis added), and since § 2255 provided Petitioner

with such an opportunity, he cannot now rely on the savings clause to pursue a


                                            5
statutory-interpretation argument that he could have raised in a previous § 2255

motion.2

      Accordingly, Petitioner cannot pursue his Santos-based argument in a § 2241

petition, which means that the district court correctly determined that it lacked

statutory jurisdiction to reach the merits of that motion. See Abernathy v. Wandes,

713 F.3d 538, 557 (10th Cir. 2013) (“[W]hen a federal petitioner fails to establish

that he has satisfied § 2255(e)’s savings clause test—thus, precluding him from

proceeding under § 2241—the court lacks statutory jurisdiction to hear his habeas

claims.”).

      AFFIRMED.




                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




      2
         In arguing to the contrary, Petitioner cites myriad cases from our sister
circuits that purportedly differ from our holding in Prost and would allow him to use
the savings clause to bring his argument under Santos. He thus argues that we should
follow the holdings from those cases instead. But even assuming that Petitioner
correctly describes the holdings of these out-of-circuit cases, we remain bound by
Prost “barring en banc reconsideration, a superseding contrary Supreme Court
decision, or authorization of all currently active judges on the court.” United States
v. Fager, 811 F.3d 381, 388 n.5 (10th Cir. 2016) (quoting United States v. Edward J.,
224 F.3d 1216, 1220 (10th Cir. 2000)). Because none of those three circumstances
exist here, we must dutifully follow Prost.
                                           6
