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

                                    TENTH CIRCUIT                          September 3, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 MARIO ANTON LEE,

        Petitioner - Appellant,

 v.                                                          No. 14-1287
                                                    (D.C. No. 1:14-CV-01206-LTB)
 J. OLIVER, Warden,                                            (D. Colo.)

        Respondent - Appellee.


                              ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


                                   I. BACKGROUND

       In 2001, a jury in the United States District Court for the Northern District of

Alabama convicted Mario Anton Lee of various drug offenses. He is serving his 105-

year sentence at the Federal Correctional Institution in Florence, Colorado. His direct

appeal and collateral challenge under 28 U.S.C. § 2255 both failed, as have his other

attempts in the Northern District of Alabama and the Eleventh Circuit Court of Appeals



        * After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
to seek authorization to file a second and successive § 2255 motion and to obtain relief

under Federal Rule of Civil Procedure 60(b), 18 U.S.C. § 3742, and Federal Rule of

Criminal Procedure 35.

       After these unsuccessful efforts, Mr. Lee applied for relief under 28 U.S.C. § 2241

in the District of Colorado, alleging three claims—judicial abuse of discretion,1

prosecutorial misconduct, and ineffective assistance of counsel—all challenging the

validity of his conviction and sentence. The district court dismissed his application

because he failed to show the remedy available to him under § 2255 in the Northern

District of Alabama, the sentencing court, is inadequate or ineffective. The court also

denied his motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). We agree

with the district court’s disposition and dismiss this appeal. We also deny Mr. Lee’s in

forma pauperis request regarding filing fees.

                                    II. DISCUSSION

       “‘We review the district court’s dismissal of a § 2241 habeas petition de novo.’”

Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (quoting Garza v. Davis,

596 F.3d 1198, 1203 (10th Cir. 2010)).

       Federal prisoners may challenge the legality of their underlying convictions by

filing a habeas petition under 28 U.S.C. § 2255. Brace, 634 F.3d at 1169. They may

challenge the execution of their sentences by filing a petition under 28 U.S.C. § 2241. Id.

A § 2255 motion must be filed with the sentencing court, see id. § 2255(a); Mr. Lee was

       1
        Mr. Lee’s application lists various claims of abuse of discretion regarding the
judge who presided at his trial and sentencing and the judge who decided his application
for habeas relief under 28 U.S.C. § 2255.
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sentenced in the Northern District of Alabama. A § 2241 motion must be filed in the

federal district court where the movant is incarcerated, see id. § 2241(d); Mr. Lee is

imprisoned in Colorado.

       Prisoners are usually given only one chance to have a § 2255 petition considered

on the merits. See 28 U.S.C. § 2244; Prost v. Anderson, 636 F.3d 578, 586 (10th Cir.

2011). Second or successive § 2255 petitions, however, are allowed under certain

circumstances, including when there is “newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found the movant guilty of

the offense . . . .” 28 U.S.C. § 2255(h)(1).

       Mr. Lee’s attempt to vacate his conviction and sentence under § 2241 conflicts

with the general rule that such challenges must be brought under § 2255. He may rely

on § 2241 only under a narrow exception called the “savings clause,” contained in

§ 2255(e), which would allow him to bring his § 2241 challenge only if a § 2255 “motion

is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). In

Prost, we held the savings clause question “is whether a petitioner’s argument

challenging the legality of his detention could have been tested in an initial § 2255

motion.” 636 F.3d at 584.

       Only in “extremely limited circumstances” will § 2255 be considered inadequate

or ineffective. Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). Section 2255

is not considered inadequate or ineffective merely because the result of a § 2255 petition

is unsuccessful. Prost, 636 F.3d at 584-85. Also, “the mere fact [the petitioner] is

                                               -3-
precluded from filing a second § 2255 petition does not establish that the remedy in

§ 2255 is inadequate.” Caravalho, 177 F.3d at 1179. Instead, the opportunity to seek a

§ 2255 remedy must be deemed “genuinely absent” before a petitioner may properly file

a § 2241 petition. Prost, 636 F.3d at 588. For example, the savings clause may be met

when the original sentencing court has been abolished or dissolved and the petitioner has

nowhere to file a § 2255 petition. Id. at 588; see also Caravalho, 177 F.3d at 1178

(listing cases).

       If the petitioner fails to show that the opportunity to seek a remedy under § 2255 is

inadequate or ineffective, Brace, 634 F.3d at 1169, the district court lacks jurisdiction to

consider the petition on the merits. See id. at 1170. That is the case here. Mr. Lee has

failed to show how any of the issues in his § 2241 petition could not have been tested

through a § 2255 motion.

       In his brief to this court, Mr. Lee discusses the procedural history of his case and

reargues the claims from his § 2241 application to the district court. He also contends his

§ 2241 application qualifies for consideration under § 2255(e)’s savings clause because it

would remedy a “fundamental miscarriage of justice.” The Supreme Court has

recognized that a “fundamental miscarriage of justice” allows courts to grant federal

habeas relief in spite of procedural bars—such as the bar on second and successive

§ 2255 motions—where a constitutional violation “has probably resulted in the

conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496

(1986); see Herrera v. Collins, 506 U.S. 390, 404 (1993) (“[H]abeas courts [have

discretion] to see that federal constitutional errors do not result in the incarceration of

                                             -4-
innocent persons.”). But Mr. Lee has not shown, under Prost’s savings clause test, that

the claims in his § 2241 application “challenging the legality of his detention could [not]

have been tested in an initial § 2255 motion.” 636 F.3d at 584.2

                                    III. CONCLUSION

       We affirm the district court’s decision to dismiss Mr. Lee’s application for habeas

corpus relief under § 2241 for lack of jurisdiction. We deny Mr. Lee’s ifp request.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




       2
          Mr. Lee refers on page 4 of his brief to the Suspension Clause, U.S. Const., art. I,
§ 9, cl. 2: “The privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require it.” He did not make
a Suspension Clause argument in the district court, and does not develop one here. We
therefore do not address it. See Richison v. Ernest Group, Inc., 634 F.3d 1123, 1127-28,
1131 (10th Cir. 2011).

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