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

                       FOR THE TENTH CIRCUIT                      June 6, 2017
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
MICHAEL DAVIS BRYANT,

       Petitioner-Appellant,
                                                    No. 16-1500
v.                                         (D.C. No. 1:16-CV-01952-LTB)
                                                     (D. Colo.)
MOSES STANCIL, Acting Warden,
FCI Florence,

       Respondent-Appellee.

                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                 _________________________________

      Mr. Michael Davis Bryant is a federal prisoner who sought habeas

relief under 28 U.S.C. § 2241. The district court dismissed for lack of

statutory jurisdiction, reasoning that Mr. Bryant had failed to show that the

remedy under 28 U.S.C. § 2255 was inadequate or ineffective. Mr. Bryant



*
      We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
appeals and seeks leave to proceed in forma pauperis. We affirm and grant

leave to proceed in forma pauperis.

                The Unavailability of Relief Under § 2241

      Mr. Bryant moved to vacate his sentence under 28 U.S.C. § 2255 in

the Eastern District of Washington, and the district court denied the

motion. Mr. Bryant then unsuccessfully asked the Ninth Circuit Court of

Appeals to allow the filing of a second or successive § 2255 motion.

      Unable to file a second or successive § 2255 motion, Mr. Bryant

initiated the present case, filing a habeas petition under 28 U.S.C. § 2241

in the District of Colorado. The district court dismissed for lack of

statutory jurisdiction, concluding that Mr. Bryant had failed to demonstrate

that the remedy in § 2255 was inadequate or ineffective.

      Mr. Bryant argues that his sentence should not have been enhanced

under the Armed Career Criminal Act. The sole issue is whether this

argument could be entertained through a habeas action under 28 U.S.C.

§ 2241. The district court answered “no,” reasoning that the sole remedy in

this case was a motion to vacate the sentence under 28 U.S.C. § 2255. We

agree.

      The typical remedy for a challenge to the validity of a federal

sentence is vacatur under 28 U.S.C. § 2255. Bradshaw v. Story, 86 F.3d

164, 166 (10th Cir. 1996). If this statutory remedy is otherwise available,

it would authorize vacatur of the sentence if it had been unconstitutional,

                                      2
unlawful, or imposed without authority. 28 U.S.C. § 2255(a). But vacatur

of the sentence entails restrictions on timeliness and the filing of second or

successive motions. 28 U.S.C. § 2255(e)-(f), (h).

      An alternative remedy is sometimes available through a habeas

petition under 28 U.S.C. § 2241. But § 2241 cannot ordinarily be used to

address the validity of a sentence because of the availability of a remedy

under § 2255. Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (per

curiam). An exception exists, allowing a prisoner to challenge the validity

of a sentence under § 2241 when the remedy in § 2255 is “inadequate or

ineffective to test the legality of his detention.” Prost v. Anderson, 636

F.3d 578, 584 (10th Cir. 2011) (quoting 28 U.S.C. § 2255(e)).

      To determine whether the remedy in § 2255 is “inadequate or

ineffective,” the court focuses on “process” rather than “substance.” Id.

The test is whether the petitioner had an opportunity to present and argue

his claim under § 2255. Id. If the claim could have been presented in the

initial § 2255 motion, the remedy in § 2255 is neither inadequate nor

ineffective. Id.

      Mr. Bryant makes three arguments:
      1.    He cannot file a second or successive § 2255 motion.

      2.    The Ninth Circuit Court of Appeals erred.

      3.    He did not realize the need to make certain claims until the
            Ninth Circuit issued its decision.
We reject each argument.
                                      3
       First, Mr. Bryant argues that the remedy under § 2255 was

inadequate or ineffective because the Ninth Circuit would not permit him

to file a second or successive § 2255 motion. But his inability to file a

second § 2255 petition “does not establish that the remedy in § 2255 is

inadequate.” Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).

       Second, he argues that the Ninth Circuit erred on the merits. But,

even if true, a § 2255 remedy is not inadequate or ineffective “simply

because a court errs in rejecting a good argument.” Prost v. Anderson, 636

F.3d 578, 590 (10th Cir. 2011).

       Finally, Mr. Bryant argues that he did not realize the need to present

certain arguments until he saw the Ninth Circuit’s opinion. But even if Mr.

Bryant had not realized the need to make an argument, he could have made

it. Thus, the remedy in § 2255 was not inadequate or ineffective. Id. at

589.

                                     * * *

       The district court correctly concluded that Mr. Bryant could not

obtain relief under § 2241. We therefore affirm.




                                       4
                   Leave to Proceed in Forma Pauperis

      Mr. Bryant also seeks leave to proceed in forma pauperis. The Court

grants this request.




                                  Entered for the Court



                                  Robert E. Bacharach
                                  Circuit Judge




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