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

                            FOR THE TENTH CIRCUIT                            June 5, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DETRIC LEWIS,

      Petitioner - Appellant,

v.                                                         No. 18-3046
                                                  (D.C. No. 5:18-CV-03044-JWL)
N. C. ENGLISH, Warden, USP-                                  (D. Kan.)
Leavenworth,

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Detric Lewis is currently serving a federal narcotics sentence in Leavenworth,

Kansas. Proceeding pro se,1 Lewis petitioned the district court for a writ of habeas

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

For the reasons explained below, we affirm.



      *
         After examining Lewis’ brief and the appellate record, this panel has
determined unanimously that oral argument wouldn’t materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
isn’t binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App.
P. 32.1; 10th Cir. R. 32.1.
       1
         Because Lewis proceeds pro se, we liberally construe his pleadings. But we
won’t act as his advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                     Background

      Lewis pleaded guilty in the Northern District of Texas to conspiracy to

distribute a controlled substance. United States v. Lewis, 467 F. App’x 298, 299 (5th

Cir. 2012) (unpublished). The sentencing court applied the United State Sentencing

Guidelines’ career-offender enhancement and sentenced Lewis to 188 months in

prison. Id.; see also U.S.S.G. § 4B1.1. On direct appeal, Lewis argued that his

counsel was ineffective in failing to argue that his prior Texas conviction for

possession with intent to deliver didn’t qualify as a controlled-substance offense for

purposes of the career-offender enhancement. See Lewis, 467 F. App’x at 299. The

Fifth Circuit affirmed because its controlling precedent at the time held that

possession with intent to deliver under Texas law was a controlled-substance offense.

Id.; see also United States v. Ford, 509 F.3d 714, 716–17 (5th Cir. 2007), overruled

by United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). Thus, it concluded that

Lewis’ counsel had no grounds to challenge the enhancement. Lewis, 467 F. App’x at

299. Lewis asserted three additional ineffective-assistance-of-counsel claims in a 28

U.S.C. § 2255 motion that he subsequently filed in the Northern District of Texas.

See Lewis v. United States, No. 3:13-CV-2176-D, 2013 WL 6869471, at *2–3 (N.D.

Tex. Dec. 30, 2013) (unpublished). The court rejected each. See id. at *4.

      Then, following the Supreme Court’s decision in Mathis v. United States, 136

S. Ct. 2243 (2016), Lewis requested the Fifth Circuit’s permission to file a second or

successive § 2255 motion on the theory that his possession-with-intent-to-deliver


                                           2
conviction wasn’t a controlled-substance offense under Mathis’ rule. See In re Lewis,

No. 16-10799, slip op. at 1 (5th Cir. Oct. 20, 2016) (unpublished). The Fifth Circuit

denied his request because Mathis didn’t announce a new, retroactively applicable

rule of constitutional law. Id. at 1–2. Subsequently, the Fifth Circuit held that Mathis

abrogated Ford—its prior decision holding that possession with intent to deliver was

a controlled-substance offense. See Tanksley, 848 F.3d at 349. In light of this

development, Lewis once again requested authorization to file a second or successive

§ 2255 motion. See In re Lewis, No. 17-10389, slip op. at 1 (5th Cir. May 31, 2017)

(unpublished). The Fifth Circuit again denied Lewis’ request and warned him that it

would sanction him if he continued to make “frivolous, repetitive, or otherwise

abusive filings” within the Fifth Circuit. Id. at 2.

       Lewis next turned his campaign for relief toward the District of Kansas to file

the instant § 2241 petition.2 Lewis recognized that § 2255 is generally the exclusive

mechanism to collaterally attack a federal sentence, but he argued that § 2255(e)’s

savings clause allowed him to seek § 2241 relief because § 2255 was “inadequate or

ineffective to test the legality of his detention.” § 2255(e). Specifically, Lewis argued

that Mathis and Tanksley exposed a “fundamental defect” in his sentence that he

cannot challenge with a second or successive § 2255 motion because these cases


       2
       Although § 2255 motions must be brought in the district where the movant
was convicted, § 2241 petitions must be brought in the district where the petitioner is
confined. See Hale v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016). Thus, insofar as
Lewis may challenge his sentence under § 2241, he has chosen the correct venue to
do so.
                                             3
announce a new rule of statutory interpretation as opposed to a new rule of

constitutional law. R. 28 (quoting In re Davenport, 147 F.3d 605, 611 (7th Cir.

1998)); see also § 2255(h) (authorizing second or successive § 2255 motions only in

cases of newly discovered evidence or “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court”).

      The district court dismissed Lewis’ petition for lack of jurisdiction. It

explained that Lewis could have argued in his § 2255 motion that Ford should be

overturned and he could have then sought en banc or certiorari review to achieve that

end. Citing to our decision in Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), the

district court accordingly held that § 2255 was adequate to test the legality of Lewis’

detention. Thus, the district court determined that § 2255(e)’s savings clause didn’t

apply and Lewis couldn’t attack his sentence under § 2241. Lewis appeals.3

                                        Analysis

      “A § 2255 motion is ordinarily the only means to challenge the validity of a

federal conviction following the conclusion of direct appeal.” Hale, 829 F.3d at 1165.

Thus, a district court normally lacks jurisdiction to entertain a § 2241 petition

challenging a federal prisoner’s conviction or sentence. See Abernathy v. Wandes,

713 F.3d 538, 557 (10th Cir. 2013). But a federal prisoner may proceed under § 2241

in “rare instances” when “§ 2255 fail[s] as an adequate or effective remedy to


      3
        As a federal prisoner, Lewis doesn’t need a certificate of appealability to
appeal the district court’s order dismissing his § 2241 petition. See Eldridge v.
Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015).
                                            4
challenge a conviction or the sentence imposed.” Sines v. Wilner, 609 F.3d 1070,

1073 (10th Cir. 2010); see also § 2255(e) (authorizing federal prisoner to file § 2241

petition if it “appears that the remedy by [§ 2255] motion is inadequate or ineffective

to test the legality of his detention”). We have explained that if “a petitioner’s

argument challenging the legality of his detention could have been tested in an initial

§ 2255 motion . . . , then the petitioner may not resort to the savings clause and

§ 2241.” Prost, 636 F.3d at 584. In other words, the savings clause “is concerned

with process—ensuring the petitioner an opportunity to bring his argument—not with

substance—guaranteeing nothing about what the opportunity promised will

ultimately yield in terms of relief.” Id.

       Lewis argues that the savings clause applies because his Mathis argument was

unavailable to him when he filed his initial § 2255 motion. Further, he says, Mathis

isn’t a new rule of constitutional law that would’ve given him a basis to file a second

or successive § 2255 motion. Thus, the only way Lewis could’ve prevailed under

§ 2255 is if he anticipated Mathis, argued it in the face of conflicting Fifth Circuit

precedent, secured a writ of certiorari or en banc review, and convinced the Supreme

Court or en banc Fifth Circuit that his position was correct.

       We don’t doubt that this would have been an uphill battle; but Lewis at least

had the opportunity to take this path. And Prost makes clear that this opportunity—as

unlikely as success might have been—forecloses our application of § 2255(e)’s

savings clause. See 636 F.3d at 590 (declining to apply savings clause after Supreme


                                            5
Court announced new rule of statutory interpretation reversing circuit precedent in

effect at time of petitioner’s § 2255 motion).

      Lewis acknowledges that Prost poses a problem for his § 2241 petition.

Instead of attempting to distinguish Prost, he simply asks us not to follow it. Lewis

notes that several of our sibling circuits follow what’s known as the erroneous-

circuit-foreclosure test. Courts following that test apply the savings clause if a circuit

court’s subsequently overturned interpretation of a statute precluded relief at the time

the § 2241 petitioner moved for relief under § 2255. See, e.g., Hill v. Masters, 836

F.3d 591, 595 (6th Cir. 2016) (invoking savings clause where § 2241 petitioner

“show[ed] (1) a case of statutory interpretation, (2) that is retroactive and could not

have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence

presents an error sufficiently grave to be deemed a miscarriage of justice or a

fundamental defect”); Davenport, 147 F.3d at 610 (allowing § 2241 petition to

proceed because (1) “[t]he law of the circuit was . . . firmly against” petitioner when

he filed § 2255 motion; (2) the Supreme Court subsequently adopted novel

interpretation of relevant statute favorable to petitioner; and (3) petitioner couldn’t

file a second or successive § 2255 motion because change in law was statutory, not

constitutional). But see McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851

F.3d 1076, 1099–1100 (11th Cir. 2017) (en banc) (overturning prior Eleventh Circuit

precedent applying erroneous-circuit-foreclosure test). See generally McCarthan, 851

F.3d at 1084–85 (discussing six-way circuit split over savings clause’s application).


                                            6
But we specifically rejected that approach in Prost. See 636 F.3d at 593–94. Absent

intervening Supreme Court precedent or en banc review, this panel cannot revisit that

decision. See United States v. Fager, 811 F.3d 381, 388 n.5 (10th Cir. 2016).

Therefore, the savings clause doesn’t apply and § 2255(e) precludes the district court

from hearing Lewis’ § 2241 petition. Accordingly, we affirm.




                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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