                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  December 2, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 MIKEAL GLENN STINE,

                Petitioner - Appellant,
                                                        No. 10-1217
 v.
                                                (D.C. No. 10-CV-00977-ZLW)
                                                          (D. Colo.)
 BLAKE DAVIS, Warden, ADX
 Florence,

                Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Mikeal Glenn Stine argues that his sentencing court mistakenly designated

him a career offender based on two prior escape convictions in violation of

Chambers v. United States, 555 U.S. 122 (2009). Because he seeks to challenge

the fact (or underlying legality) of his federal sentence (rather than how it is

executed), Mr. Stine has to pursue his claim under 28 U.S.C. § 2255. The

difficulty is that he previously tried and lost a § 2255 motion before Chambers

and he cannot now meet the requirements for a successive petition under


      *
         This order and judgment is not binding precedent except under the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.
§ 2255(h). Seeking to work around this difficulty, Mr. Stine invokes § 2255(e),

§ 2255’s so-called “savings clause.” That provision allows a petitioner to pursue

a post-conviction petition under 28 U.S.C. § 2241 when § 2255 is “inadequate or

ineffective to test the legality of his detention.”

      This court has said that the relevant question in assessing whether

§ 2255(e) applies and resort to § 2241 becomes permissible is whether “a

petitioner’s argument challenging the legality of his detention could have been

tested in an initial § 2255 motion.” Prost v. Anderson, 636 F.3d 578, 584 (10th

Cir. 2011). Mr. Stine clearly fails this test. A Chambers-type argument that his

prior escape convictions did not merit a career offender enhancement was

available to Mr. Stine at the time of his initial § 2255 motion. The fact that

Chambers itself was not decided until after Mr. Stine filed his initial § 2255

motion makes no difference. Neither does the fact that Mr. Stine may have tried

and lost a Chambers-type argument in his first § 2255 motion mean that it was an

inadequate and ineffective remedial vehicle for challenging his detention. See

Prost, 636 F.3d at 585-89.

      Neither would Mr. Stine’s effort to invoke the savings clause fare better

elsewhere under some other test. “Every circuit to decide this issue” has held the

savings clause inapplicable to sentence enhancement challenges like Mr. Stine’s,

even though the circuits employ somewhat different paths in arriving at their

common conclusion. Gilbert v. United States, 640 F.3d 1293, 1312 (11th Cir.

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2011) (en banc); see id. at 1312-16 (reviewing sentencing challenge decisions

from the Fifth, Sixth, and Third Circuits); see also Darden v. Stephens, 426 F.

App’x 173, 174 (4th Cir. 2011) (unpublished); Unthank v. Jett, 549 F.3d 534, 536

(7th Cir. 2008). Thus, whether one looks to our own circuit law, or to the law of

any other circuit to have confronted the question, it makes no difference: § 2255

is an adequate and effective means for testing the legality of a sentencing

complaint such as Mr. Stine’s. The district court thus properly held Mr. Stine’s

effort to invoke § 2241 impermissible and correctly dismissed his petition. Mr.

Stine’s motion to proceed in forma pauperis, and his motions requesting the court

to take judicial notice are granted. The judgment is affirmed.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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