                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   June 12, 2014
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 13-8088
                                              (D.C. No. 2:05-CR-00239-NDF-1)
 RAYMOND DUANE SANCHEZ,                                   (D. Wyo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not 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.

      On September 23, 2013, Appellant Raymond Duane Sanchez filed a pro se

pleading styled “Petition for Redress of Grievance.” Relying on Alleyne v. United



      *
        This order and judgment is not binding precedent except under the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.
States, 133 S. Ct. 2151 (2013), Sanchez collaterally challenged the mandatory

minimum sentence he received for violating 18 U.S.C. § 922(g)(1). 1 But see In re

Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013) (holding Alleyne does not apply

retroactively to cases on collateral review). The district court concluded

Sanchez’s claim must be brought in a motion filed pursuant to 28 U.S.C. § 2255

because it implicated the validity of his sentence. See United States v. Nelson,

465 F.3d 1145, 1148 (10th Cir. 2006) (“A § 2255 motion is one claiming the right

to be released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States . . . or is otherwise subject to collateral

attack.” (quotation omitted)). The court, however, declined to recharacterize

Sanchez’s petition as a motion filed pursuant to § 2255, in part, because it would

likely be barred by the one-year statute of limitations. 28 U.S.C. § 2255(f)

(setting forth a one-year statute of limitations for § 2255 motions).

      The district court concluded there was no jurisdictional basis for Sanchez’s

petition other than § 2255 and denied it for that reason. The court, however, then

proceeded to examine Sanchez’s Alleyne claim and concluded it lacked merit. It

relied on this conclusion as an alternate basis to deny the petition.

      1
        Sanchez pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g), and received a 180-month term of incarceration
because he qualified as an armed career criminal. See 18 U.S.C. § 924(e)(1). In
his direct appeal, he argued one of the prior convictions used to support the
application of the Armed Career Criminal Act was not a crime of violence.
United States v. Sanchez, 226 F. App’x 852, 853 (10th Cir. 2007). This court
considered the argument but affirmed Sanchez’s sentence. Id. at 854.

                                          -2-
      On appeal, Sanchez challenges the denial of his petition, arguing the

district court erred by recharacterizing it as a § 2255 motion and, alternatively,

that the jurisdictional basis of his petition lies in the Petition Clause of the First

Amendment. 2 On his first point, Sanchez is simply incorrect. The district court

specifically refused to recharacterize his motion as one brought pursuant to 28

U.S.C. § 2255. Because Sanchez’s conviction became final many years before he

filed the instant petition, the claim he seeks to raise would likely be untimely

under 28 U.S.C. § 2255(f). Thus, the district court’s decision to not

recharacterize the petition was not an abuse of discretion. United States v.

Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir. 2005) (holding district court

did not err by refusing to recharacterize defendant’s motion as one pursuant to 28

U.S.C. § 2255 because “such a motion would, at least facially, be barred as

untimely” (quotation omitted)).

      As to Sanchez’s second argument, this court reviews jurisdictional issues

de novo. Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir.

2013). It is well-settled that “[t]he exclusive remedy for testing the validity of a

[federal] judgment and sentence, unless it is inadequate or ineffective, is that

provided for in 28 U.S.C. § 2255.” Caravalho v. Pugh, 177 F.3d 1177, 1178

(10th Cir. 1999) (quotation omitted). Thus, Sanchez’s assertion that jurisdiction

over his petition arises under the Petition Clause of the First Amendment can be

      2
          Sanchez’s request to proceed in forma pauperis on appeal is granted.

                                           -3-
quickly rejected. The AEDPA provides a prisoner with a reasonably adequate

opportunity to pursue a post-conviction challenge to his conviction or sentence

and, thus, does not violate the First Amendment’s right of access to the courts.

Hill v. Dailey, 557 F.3d 437, 439 (10th Cir. 2009). Because of the jurisdictional

limitation imposed by the AEDPA, a federal prisoner must use § 2255 to

collaterally attack his conviction or sentence unless he can show that § 2255 is

either inadequate or ineffective. Id. at 439-40; see also Sines v. Wilner, 609 F.3d

1070, 1073-74 (10th Cir. 2010) (discussing the circumstances under which § 2255

could be inadequate or ineffective). Because Sanchez has failed to show that

§ 2255 is inadequate or ineffective, the district court did not err in concluding it

lacked jurisdiction to consider his Petition for Redress of Grievance.

      Although we affirm the district court’s jurisdictional ruling, we conclude

the district court erred by addressing Sanchez’s claims on the merits and denying

his petition with prejudice on that alternative basis. See Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 93-94 (1998) (“The requirement that jurisdiction be

established as a threshold matter spring[s] from the nature and limits of the

judicial power of the United States and is inflexible and without exception.”).




                                          -4-
Accordingly, we remand the matter to the district court with instructions to

vacate its order dated October 21, 2013, denying Sanchez’s petition and enter a

new order dismissing Sanchez’s petition without prejudice.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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