                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                     PUBLISH                    April 8, 2013
                                                            Elisabeth A. Shumaker
                  UNITED STATES COURT OF APPEALS                Clerk of Court

                              TENTH CIRCUIT



 GARY ABERNATHY,

             Petitioner-Appellant,
 v.
                                                      No. 10-1252
 WARDEN JULIE WANDES,

             Respondent-Appellee.



                 Appeal from the United States District Court
                         for the District of Colorado
                       (D.C. No. 1:10-CV-00521-LTB)


Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with her on the briefs), Denver, Colorado, for Petitioner-
Appellant.

Michael A. Rotker, Attorney, Appellate Section, United States Department of
Justice, Criminal Division (Lanny A. Breuer, Assistant Attorney General; Greg D.
Andres, Acting Deputy Assistant Attorney General; John F. Walsh, United States
Attorney; and Paul Farley, Assistant United States Attorney, with him on the
briefs), Washington D.C. and Denver, Colorado, for Respondent-Appellee.


Before HARTZ, EBEL, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.
      Petitioner Gary Abernathy, a federal prisoner, appeals from the judgment of

the United States District Court for the District of Colorado, which dismissed his

28 U.S.C. § 2241 petition for a writ of habeas corpus. By way of § 2241, Mr.

Abernathy seeks to have an alleged error of law in the calculation of his sentence

corrected based upon a subsequently issued Supreme Court decision interpreting

the Armed Career Criminal Act (“ACCA”), see Chambers v. United States, 555

U.S. 122 (2009), despite the fact that his conviction became final many years ago.

      In 2001, Mr. Abernathy was convicted in the United States District Court

for the Western District of Missouri of being a felon in possession of a firearm

and was sentenced as an armed career criminal under the ACCA because he had

three qualifying ACCA convictions. Consistent with Eighth Circuit precedent at

that time, the district court determined that Mr. Abernathy’s 1979 conviction for a

“walkaway” escape was a qualifying conviction under the ACCA. Mr. Abernathy

unsuccessfully challenged this determination on direct appeal. Subsequently, he

filed a motion under 28 U.S.C. § 2255 in the sentencing court seeking to raise on

collateral review several seemingly unrelated challenges. The district court

denied relief and the Eighth Circuit declined to grant a Certificate of

Appealability (“COA”) under 28 U.S.C. § 2253(c)(1).

      Several years after Mr. Abernathy’s 2001 conviction appeared to be final,

the Supreme Court decided Chambers, which held that an escape conviction based

on a failure to report (or to return) to a penal facility falls outside the scope of the

                                           2
ACCA’s definition of a violent felony and therefore cannot serve as a qualifying

ACCA conviction. See 555 U.S. at 127, 130. Believing his 1979 walkaway

escape to be the type of conviction that is not a qualifying ACCA conviction

under Chambers, Mr. Abernathy filed a motion with the Eighth Circuit seeking

the requisite authorization to file a second motion with the sentencing court under

28 U.S.C. § 2255. See generally In re Cline, 531 F.3d 1249, 1251 (10th Cir.

2008) (“A district court does not have jurisdiction to address the merits of a

second or successive § 2255 or 28 U.S.C. § 2254 claim until [the applicable

circuit] court has granted the required authorization.”). The Eighth Circuit denied

relief.

          Subsequently, Mr. Abernathy filed a § 2241 petition in the federal judicial

district of his incarceration—the United States District Court for the District of

Colorado—to challenge his sentence. Mr. Abernathy sought to use the so-called

“savings clause” contained in § 2255(e), which permits a federal prisoner to

proceed under § 2241 when the remedy under § 2255 is “inadequate or ineffective

to test the legality of his detention.” Without reaching the merits of Mr.

Abernathy’s Chambers claim, the district court—applying the Fifth Circuit’s

savings clause test (see Reyes-Requena v. United States, 243 F.3d 893, 904 (5th

Cir. 2001))—dismissed his § 2241 petition, reasoning that Mr. Abernathy failed to

meet the “actual innocence” prong of that test because one cannot be “actually

innocent” of a sentencing enhancement.

                                             3
         After the district court’s decision, however, we decided Prost v. Anderson,

636 F.3d 578 (10th Cir. 2011), which set forth a different savings clause test than

the one that the district court applied. Mr. Abernathy contends that he satisfies

Prost’s savings clause test because the law-of-the-case doctrine precluded him, in

his initial § 2255 petition, from challenging whether his escape conviction was a

predicate crime under the ACCA. And, even if we were to conclude otherwise, he

argues, denying him the opportunity to proceed under § 2241 would have the

effect of violating the Constitution’s Suspension Clause—a result that we must

avoid.

         We disagree with Mr. Abernathy on both scores. First, we conclude that,

even assuming arguendo that the law-of-the-case doctrine would have had the

effect of foreclosing Mr. Abernathy’s Chambers argument in his initial § 2255

proceeding, it would not follow that § 2255 was an inadequate or ineffective

procedural vehicle for testing the validity of his confinement. Second, reviewing

for plain error, we determine that it is not clear or obvious under well-settled law

that barring Mr. Abernathy from proceeding under § 2241 raises concerns under

the Suspension Clause.

         Accordingly, we affirm the district court’s dismissal of Mr. Abernathy’s

§ 2241 habeas petition for lack of statutory jurisdiction.

                                           I

         In 2001, Mr. Abernathy was convicted of unlawful possession of a firearm

                                           4
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The 2001 Presentence

Report (“PSR”) recommended that Mr. Abernathy be sentenced as an armed

career criminal under the ACCA because his criminal history included three prior

“violent felony” convictions: (1) a 1973 federal assault conviction; (2) the 1979

federal escape conviction; and (3) a 1990 Kansas state court conviction for

aggravated robbery. 1 Over Mr. Abernathy’s objection that his 1979 escape

conviction did not qualify under the ACCA, the district court sentenced him to

293 months’ imprisonment as an armed career criminal.

      On direct appeal to the Eighth Circuit, Mr. Abernathy again argued that his

1979 escape conviction was not a qualifying conviction under the ACCA. The

Eighth Circuit affirmed the district court, holding that the fact that Mr. Abernathy

“merely walked away from his place of incarceration” did not take his conviction

outside § 924(e)’s definition of a violent felony. United States v. Abernathy, 277

F.3d 1048, 1051 (8th Cir. 2002). Mr. Abernathy filed a petition for certiorari to

the United States Supreme Court, but it was denied.

      In 2002, Mr. Abernathy filed a pro se § 2255 petition to vacate his sentence

in the Western District of Missouri, asserting several claims that were seemingly

unrelated to his challenge to the ACCA predicate-offense status of his 1979

escape conviction. The district court denied the motion. Subsequently, the


      1
            Whether the first and third convictions are qualifying convictions under the
ACCA is not at issue in this appeal.

                                           5
Eighth Circuit denied Mr. Abernathy a COA and dismissed the matter.

       In 2008, the Supreme Court held that a prior conviction does not constitute

a “violent felony” under the ACCA unless it involves “purposeful, violent, and

aggressive conduct.” Begay v. United States, 553 U.S. 137, 144–45 (2008)

(citation omitted) (internal quotation marks omitted). Following Begay, in

Chambers, the Supreme Court held that a conviction for failure to report to a

penal institution (for weekend confinement) is not a “violent felony” under the

ACCA. See Chambers, 555 U.S. at 128 (noting that the offense of failure to

report “does not involve conduct that presents a serious potential risk of physical

injury to another” (quoting Begay, 553 U.S. at 141–42) (internal quotation marks

omitted)).

       In response to Chambers, and after the denial of various habeas petitions he

filed in the Eighth Circuit, Mr. Abernathy filed a pro se application for a writ of

habeas corpus pursuant to § 2241 in the United States District Court for the

District of Colorado, the district where he was incarcerated. 2 In his application,

Mr. Abernathy argued that he should be permitted to proceed with his § 2241



       2
                Section 2241 petitions must be filed in the federal judicial district of the
prisoner’s incarceration. See 28 U.S.C. § 2241(a). Section 2255 motions, on the other
hand, must be filed in the district in which the prisoner was sentenced. See 28 U.S.C.
§ 2255; see also Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (discussing the
proper judicial district for filing § 2241 petitions and § 2255 motions). Because Mr.
Abernathy was sentenced in the Western District of Missouri, he filed his § 2255 motions
in that district.

                                             6
petition because § 2255 is “inadequate and ineffective to test the legality of [his]

conviction” given that:

             (1) at the time of the conviction, settled law of the circuit or the
             Supreme Court established the legality of the conviction; (2)
             subsequent [to his] direct appeal and first § 2255 motion, the
             substantive law changed such that the conduct of which [he] was
             convicted is deemed not to be criminal; and (3) [he] cannot
             satisfy the gatekeeping provisions of § 2255 because the new rule
             [i.e., Chambers] is not one of constitutional law. [3]

R. at 10–11 (Appl. for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,

filed Mar. 5, 2010).

      Mr. Abernathy asserted that Chambers was retroactive to cases on

collateral review because it announced a substantive rule regarding the ACCA’s

meaning, and that after Chambers, he was “actually innocent” of his

armed-career-criminal status because his 1979 escape conviction was no longer a

qualifying ACCA conviction. Thus, according to Mr. Abernathy, he did not have

three prior violent felony convictions within the meaning of the ACCA.

      The magistrate judge ordered Mr. Abernathy to show cause as to why his

§ 2241 petition should not be denied, stating that “[t]he exclusive remedy for

      3
              Mr. Abernathy is correct that § 2255(h), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, § 105, 110
Stat. 1214 (1996), prevents him from bringing a second or successive application based
upon his Chambers argument. Such motions are limited to those that rely on newly
discovered evidence of innocence or new rules of constitutional law that the Supreme
Court makes retroactive to cases on collateral review. See 28 U.S.C. § 2255(h). Mr.
Abernathy’s application is not based on newly discovered evidence of innocence and
Chambers is not a new rule of constitutional law that the Supreme Court has made
retroactive. Thus, Mr. Abernathy’s application would not qualify under § 2255(h).

                                           7
testing the validity of a judgment and sentence, unless it is inadequate or

ineffective, is that provided for in 28 U.S.C. § 2255,” id. at 30 (Order to Show

Cause, filed Apr. 6, 2010) (quoting Johnson v. Taylor, 347 F.2d 365, 366 (10th

Cir. 1965) (per curiam)) (internal quotation marks omitted), and Mr. Abernathy

had not demonstrated that “the remedy available to him pursuant to § 2255 [was]

inadequate or ineffective,” id.

      Mr. Abernathy filed six separate responses to the magistrate judge’s order

to show cause. Mr. Abernathy has explained that, in these six responses, he

argued to the district court that “through no fault of his own, he had no way of

obtaining relief other than by way of § 2241, and relief was appropriate under that

statute.” 4 Aplt. Supp. Opening Br. at 8.

      Without requesting a response from the government, the district court

dismissed Mr. Abernathy’s § 2241 petition. The district court first noted that the

exclusive remedy for testing the validity of a sentence is that provided for in

§ 2255, unless § 2255’s remedy is inadequate or ineffective to test the legality of



      4
                Although at times difficult to interpret, Mr. Abernathy made a host of
arguments in his six responses: (1) he maintained that his argument regarding his 1979
escape conviction was preserved when he had argued the same to the Eighth Circuit on
direct appeal; (2) under Bousley v. United States, 523 U.S. 614 (1998), and Davis v.
United States, 417 U.S. 333 (1974), a new rule of law must apply retroactively in
postconviction proceedings; (3) he was prevented from previously presenting his claim
since Chambers had yet to be decided; (4) his claim is not barred by Teague v. Lane, 489
U.S. 288 (1989), because Chambers reached the substantive part of a federal statute; and
(5) he is actually innocent of committing one of the predicate-offense violent felonies
under the ACCA.

                                            8
his detention. Applying the Fifth Circuit’s savings clause test from Reyes-

Requena, that a panel of our court had previously cited with approval in United

States v. Apodaca, 90 F. App’x 300, 304 n.10 (10th Cir. 2004), the district court

held that Mr. Abernathy could not meet the “actual innocence” prong of that test

because being “actually innocent” of an enhanced sentence is “not the sort of

actual innocence that could justify a determination that the remedy available

pursuant to Section 2255 in his criminal case is inadequate or ineffective.” R. at

60–61 (Dist. Ct. Order of Dismissal, filed May 26, 2010).

      Mr. Abernathy, still proceeding pro se, filed a timely notice of appeal. In

his opening brief to our court, he again argued that he was “actually innocent” of

the enhancement he received under the ACCA and that he should be allowed to

proceed under § 2241 because § 2255 was inadequate or ineffective. Upon Mr.

Abernathy’s request, we appointed counsel to represent him—the Federal Public

Defender for the District of Colorado. See Order, No. 10-1252, at *1 (10th Cir.,

filed Sept. 24, 2010) (appointing counsel and addressing supplemental briefing).

We directed counsel to address any issues it deemed appropriate as well as the

following:

             Whether the remedy under 28 U.S.C. § 2255 would be
             “inadequate or ineffective”—thereby permitting Mr. Abernathy
             to challenge his sentence under 28 U.S.C. § 2241—if the
             gatekeeping language of § 2255(h)(2) would not authorize the
             retroactive application of the Supreme Court’s case Chambers v.
             United States, 129 S. Ct. 687 (2009) to cases on collateral
             review, and that case can be deemed to have had the effect of


                                            9
             rendering Mr. Abernathy “innocent” of the enhancement that he
             received under the Armed Career Criminal Act.

Id. at *2–3. However, before Mr. Abernathy filed his reply brief, we issued

Prost, which seemingly addressed many of the same issues found in this case.

See 636 F.3d at 584–93. We therefore granted the parties leave to file

simultaneous supplemental briefs addressing Prost.

                                        II

      The broad issue on appeal is whether the district court erred in dismissing

Mr. Abernathy’s petition under § 2241. We review the court’s determination de

novo. See, e.g., Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011)

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

(quoting Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010)) (internal

quotation marks omitted)). However, there is little agreement between the parties

as to the various sub-issues that are relevant to deciding whether Mr. Abernathy

can proceed under § 2241. We begin by identifying the specific arguments

presented by the parties.

      Mr. Abernathy argues that: (1) Chambers renders illegal the enhancement

of his sentence under the ACCA; (2) he has no adequate or effective remedy

under § 2255 and, therefore, § 2255(e)’s savings clause allows him to apply for

relief under § 2241; and (3) were we to deny him access to habeas relief via the

savings clause, such a denial would have the effect of suspending his right to seek



                                        10
a writ of habeas corpus in violation of the Suspension Clause.

       The government, however, believes that it is unnecessary for us to reach

any of the issues that Mr. Abernathy has framed. Instead, the government asserts

that we may resolve this case by ruling that Mr. Abernathy has failed to make a

clear threshold showing of actual innocence under Chambers and, consequently,

he is not entitled to proceed under § 2241. 5

       Finally, further complicating matters, the district court did not address any

       5
               There are four motions pending in this case. Three of them are motions to
take judicial notice of, and supplement the record with, additional evidence regarding Mr.
Abernathy’s 1979 escape conviction; the government has filed two of them, one of which
is a sealed motion, and Mr. Abernathy has filed the other one. Because (for reasons
discussed infra) we ultimately do not reach the merits of Mr. Abernathy’s challenge to his
1979 escape conviction under Chambers, we deny all three of these motions as moot.

               In the fourth motion, Mr. Abernathy seeks to strike the government’s
“errata sheet.” In a filing styled an “errata sheet,” the government seeks to alter and
withdraw certain legal positions taken in its answer brief. An errata sheet, however, is a
filing by which a party corrects technical, inadvertent errors, rather than one by which it
makes substantive alterations to legal positions previously taken in its brief. In other
words, an errata sheet is not a proper vehicle for the request that the government presents
here. Cf. Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“We
do not condone counsel’s allowing for material changes to deposition testimony [by way
of an errata sheet].”). Accordingly, we grant Mr. Abernathy’s motion to strike the
government’s errata sheet. Furthermore, regarding a related matter, we decline the
government’s late-blooming request—made in its Supplemental Reply Brief—to treat its
errata sheet as a motion to withdraw legal positions taken in its answer brief. We have no
occasion to decide whether such a withdrawal request would have been granted if the
government actually had filed a motion to withdraw or made such a request in a more
conventional, and at least arguably proper, fashion—e.g., in its timely reply brief or at
oral argument. See United States v. Scott, 529 F.3d 1290, 1300 n.11 (10th Cir. 2008)
(granting the government’s motion to withdraw an argument). That is because the
government did not follow such a conventional route here, despite ample opportunity to
do so. Thus, we decline the government’s belated request that we treat its errata sheet as
a motion to withdraw.

                                            11
of the issues—as the parties have now framed them—in its order dismissing Mr.

Abernathy’s § 2241 petition, likely in part because it did not have the benefit of

our decision in Prost when issuing its order. Instead, the district court relied on

the Fifth Circuit’s savings clause test set forth in Reyes-Requena and found that

Mr. Abernathy could not satisfy that test. In Prost, however, we declined to

follow Reyes-Requena’s savings clause test and created our own. See Prost, 636

F.3d at 584, 592.

       Given our intervening decision in Prost, we must deviate from the path that

the district court traveled. 6 And, furthermore, we decline to determine (as the

       6
               In Reyes-Requena, the Fifth Circuit held “that the savings clause of § 2255
applies to a claim (i) that is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of a nonexistent offense
[i.e., may be actually innocent] and (ii) that was foreclosed by circuit law at the time
when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255
motion.” 243 F.3d at 904. The district court found that Mr. Abernathy could not meet
the “actual innocence factor” of the Reyes-Requena savings clause test because being
“actually innocent” of an enhanced sentence is “not the sort of actual innocence that could
justify a determination that the remedy available pursuant to § 2255 in his criminal case is
inadequate or ineffective.” R. at 60–61. In reaching this conclusion, the district court
substantially relied on our case, United States v. Richards, 5 F.3d 1369 (10th Cir. 1993)
(incorrectly cited by the district court as “United States v. Rogers”).

        The district court was correct that in Richards we stated that a defendant “cannot
be actually innocent of a noncapital sentence.” Id. at 1371; accord United States v.
Denny, 694 F.3d 1185, 1191 (10th Cir. 2012) (same); Laurson v. Leyba, 507 F.3d 1230,
1233 (10th Cir. 2007) (same). However, as the district court recognized, our position on
this issue is not pellucid. See Selsor v. Kaiser, 22 F.3d 1029, 1036 (10th Cir. 1994)
(explaining, in dicta, that in the habitual offender context, like in the capital punishment
context, a petitioner can be actually innocent of the sentence if he can show that he is
factually innocent of a required showing of proof separate and distinct from that
necessary to establish his guilt—e.g., in the habitual offender context, factual innocence
                                                                                  (continued...)

                                              12
government urges) whether Mr. Abernathy has made a threshold showing of

actual innocence, which the Fifth Circuit would require under Reyes-Requena and

several other circuits would as well. 7 We begin by examining whether Mr.



      6
        (...continued)
as to one of the prior qualifying convictions necessary to sentence him as an habitual
offender); see also Oliver v. Maxwell, 185 F.3d 874, 1999 WL 390918, at *2 (10th Cir.
1999) (noting the conflict between Richards and Kaiser and declining to “resolve . . . the
scope of the actual innocence doctrine in the context of non-capital habitual offender
sentencing”). We need not address the correctness of the district court’s ruling on the
scope of the “actual innocence” doctrine because the analytical foundation for the court’s
decision—Reyes-Requena—is no longer apposite following the establishment of our own
savings clause test in Prost, which, as Mr. Abernathy recognizes, does not include an
actual innocence inquiry. See Brace, 634 F.3d at 1170 (rejecting a petitioner’s claim that
he meets Reyes-Requena’s “actual innocence” savings clause test on the grounds that we
“explicitly declined to adopt the Reyes-Requena test in Prost”); see also Aplt. Supp.
Reply Br. at 11 (recognizing that, under Prost, access to § 2241 through the savings
clause turns solely on whether the remedy provided by § 2255 is “inadequate or
ineffective” to test the legality of Mr. Abernathy’s detention).
      7
               As noted, the government’s primary argument on appeal is that Mr.
Abernathy must first make a threshold showing of actual innocence before he can proceed
under § 2241 and he cannot do this. However, in Prost, we charted a much different
course than many of our sister circuits regarding the proper scope of the savings clause.
Compare Prost, 636 F.3d at 584–93, with Ivy v. Pontesso, 328 F.3d 1057, 1059–60 (9th
Cir. 2003), Reyes-Requena, 243 F.3d at 904, In re Jones, 226 F.3d 328, 333–34 (4th Cir.
2000), In re Davenport, 147 F.3d 605, 611–12 (7th Cir. 1998), Triestman v. United
States, 124 F.3d 361, 373–80 (2d Cir. 1997), and In re Dorsainvil, 119 F.3d 245, 248–52
(3d Cir. 1997). Although our sister circuits have adopted somewhat disparate savings
clause tests, most require a showing of “actual innocence” before a petitioner can proceed
under § 2241. See Cephas v. Nash, 328 F.3d 98, 104 n.6 (2d Cir. 2003) (surveying the
circuits’ various savings clause tests and noting that they “generally focus[] on two
issues,” one of which is “the petitioner’s actual innocence”); Reyes-Requena, 243 F.3d at
902–03 (discussing other circuits’ savings clause tests and noting that most include an
“actual innocence” component). Under the Prost framework, a showing of actual
innocence is irrelevant. Accordingly, in resolving Mr. Abernathy’s appeal—and, more
specifically, whether he may proceed under § 2241—we have no need to delve into
whether Mr. Abernathy has made a threshold showing of actual innocence.

                                            13
Abernathy can demonstrate that he meets § 2255(e)’s savings clause. In so doing,

we first address whether Mr. Abernathy has satisfied Prost’s savings clause test.

More specifically, we assess Mr. Abernathy’s argument that—because the law-of-

the-case doctrine precluded the court deciding his initial § 2255 motion from

reconsidering the decision made during his direct appeal that his 1979 escape

conviction was a qualifying ACCA conviction—he could not have tested the

legality of his detention in his initial § 2255 motion. We reject Mr. Abernathy’s

argument and hold that the potential or actual application of the law-of-the-case

doctrine to an argument raised in a § 2255 motion does not mean that § 2255 is

inadequate or ineffective, as the argument still could have been tested in that

§ 2255 proceeding.

      Second, we address Mr. Abernathy’s contention that denying him access to

§ 2241 would effect a violation of the Suspension Clause. Mr. Abernathy did not

raise this Suspension Clause argument before the district court, nor does he ask

for plain-error review on appeal. In many instances, this would foreclose our

consideration of the argument. But, for reasons that we explain below, we give

Mr. Abernathy the benefit of plain-error review. After concluding that Mr.

Abernathy’s Suspension Clause argument fails under plain-error review, we

determine that he is foreclosed from bringing his § 2241 petition.

                                          A

      Before addressing Mr. Abernathy’s arguments, a brief review of § 2255 and


                                         14
our decision in Prost is in order. In 1996, Congress significantly altered the

habeas landscape by enacting AEDPA, which limited the availability of filing

successive § 2255 petitions to instances involving either (1) clear and convincing

new evidence that the prisoner was not guilty of the offense, or (2) a new rule of

constitutional law that the Supreme Court has made retroactive to cases on

collateral review. See 28 U.S.C. § 2255(h); Prost, 636 F.3d at 583–84.

Particularly relevant to Mr. Abernathy’s circumstance is what AEDPA did not

provide. It did not provide a remedy for second or successive § 2255 motions

based on intervening judicial interpretations of statutes, even though such relief

had, in some instances, been available under prior law. See, e.g., Davis, 417 U.S.

at 346–47 (holding that § 2255 is available even on nonconstitutional grounds if a

new decision establishes that a prisoner was convicted “for an act that the law

does not make criminal”); United States v. Barnhardt, 93 F.3d 706, 708–09 (10th

Cir. 1996) (holding that the Supreme Court’s interpretation of 18 U.S.C.

§ 924(c)(1) in Bailey v. United States, 516 U.S. 137 (1995), has retroactive

application to cases on collateral review).

      Following AEDPA’s enactment, federal prisoners who are barred from

bringing second or successive § 2255 motions may still be able to petition for

habeas relief under § 2241 through the mechanism of § 2255(e)’s savings clause.

“To fall within the ambit of [the] savings clause and so proceed to § 2241, a

prisoner must show that ‘the remedy by motion [under § 2255] is inadequate or


                                         15
ineffective to test the legality of his detention.’” Prost, 636 F.3d at 581 (second

alteration in original) (quoting 28 U.S.C. § 2255(e)). Section 2255, however, has

been found to be “inadequate or ineffective” only in “extremely limited

circumstances.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999); see

Brace, 634 F.3d at 1169 (stating that “§ 2255 will rarely be an inadequate or

ineffective remedy to challenge a conviction”). In Prost, we set forth our test: we

ask “whether a petitioner’s argument challenging the legality of his detention

could have been tested in an initial § 2255 motion. If the answer is yes, then the

petitioner may not resort to the savings clause and § 2241.” 636 F.3d at 584.

      To understand how we settled on such a test in Prost, further background

regarding the case is helpful. In 1999, the defendant, Mr. Prost, was convicted in

the United States District Court for the Eastern District of Missouri of, inter alia,

conspiracy to launder illegal drug proceeds in violation of 18 U.S.C. § 1956. See

Prost, 636 F.3d at 580. This particular crime contained an element requiring

proof that Mr. Prost laundered illegal “proceeds.” See id. Following conviction,

Mr. Prost did not file a direct appeal, nor did he challenge the “proceeds” element

during a later § 2255 motion. See id.

      In 2008, the Supreme Court decided United States v. Santos, 553 U.S. 507

(2008), which held that when the government alleges that the defendant laundered

the “proceeds” of an illegal gambling business, the government must prove that

the laundering transactions involved the profits of the business, rather than its


                                          16
gross receipts, to establish a violation of § 1956. See 553 U.S. at 514 (plurality

opinion); Prost, 636 F.3d at 580. In response to Santos, Mr. Prost filed a petition

for a writ of habeas corpus under § 2241 to challenge his money-laundering

conviction. See Prost, 636 F.3d at 580–81. The district court dismissed the

habeas petition, see id. at 582, and we affirmed, see id. at 598.

       Without addressing whether Mr. Prost’s money-laundering conviction was

invalid under Santos, we concluded that Mr. Prost could not seek habeas relief

under § 2241 because he failed to show that § 2255 provided an inadequate or

ineffective remedy when he filed his first § 2255 petition. 8 See id. at 588; id. at

580 (“The fact that § 2255 bars Mr. Prost from bringing his statutory



       8
               The government contends that we need not “address Prost or any of the
issues it reserved, including whether [Prost’s] narrow interpretation of Section 2255(e)
raises serious constitutional questions that justify a broader interpretation of the statute to
avoid those questions,” because Mr. Abernathy first must make a threshold showing that,
under Chambers, he is actually innocent. Aplee. Supp. Br. at 3; see also id. at 4 (urging
us to affirm the dismissal of Mr. Abernathy’s § 2241 petition “on the narrow alternative
ground that he is not ‘actually innocent’ of his enhanced sentence.”). More specifically,
the government contends that Prost was decided “on the necessary (but not sufficient)
assumption that [Mr.] Prost was actually innocent.” Aplee. Supp. Reply Br. at 7. We
disagree with the government’s reading of Prost. In Prost, we did not reach the merits of
Mr. Prost’s actual innocence claim or assume without deciding that he had made a
sufficient showing of actual innocence. See 636 F.3d at 580–88; cf. Brace, 634 F.3d at
1170 n.3 (after rejecting the petitioner’s argument that he could proceed with his Santos
claim under § 2241, discussing in dicta that “[e]ven if [the petitioner] could raise a Santos
argument” he would not prevail under it). Just as we did not need to reach the Santos
claim in Prost or Brace, we need not reach the merits of Mr. Abernathy’s Chambers
actual innocence claim because we conclude that he cannot proceed under § 2241 at all.
We have no occasion to decide whether or under what circumstances, if any, such a
showing may be necessary; rather, we can affirm the district court’s decision in the
instant case by closely adhering to the decisional framework applied in Prost and Brace.

                                              17
interpretation argument now, in a second § 2255 motion almost a decade after his

conviction, doesn’t mean the § 2255 remedial process was ineffective or

inadequate to test his argument.”).

      Notably, in our analysis, we expressly rejected a theory that Mr. Prost

advanced for why § 2255 did not provide an adequate and effective means of

testing his “proceeds” argument based upon the existence of adverse circuit

precedent. Under the so-called “erroneous circuit foreclosure test,” Mr. Prost

argued that he should have been excused from not raising an argument in his

initial § 2255 motion in the Eastern District of Missouri if binding circuit court

precedent—that is, Eighth Circuit precedent—had previously rejected his

argument. See id. at 590–93. In setting our face against this test, we held that

§ 2255 was adequate and effective because Mr. Prost could have made his

“proceeds” argument to the Eighth Circuit, even if this argument had been

foreclosed by then-controlling Eighth Circuit precedent. See id. at 590.

Regardless of the likelihood of success on such an argument, we reasoned, “[t]he

savings clause doesn’t guarantee results, only process.” Id.

      We now turn to Mr. Abernathy’s arguments regarding why he should be

permitted to proceed under § 2241.

                                          B

      Mr. Abernathy’s position is, in many ways, very similar to that of Mr.

Prost. Like Mr. Prost, Mr. Abernathy was convicted of an offense and sentenced


                                         18
under then-controlling circuit precedent. Furthermore, like Mr. Prost, he did not

raise in his initial § 2255 motion the issue that he now seeks to pursue under

§ 2241. And, analogous to Mr. Prost’s circumstances, following the initial § 2255

motion, the Supreme Court issued a decision—in Mr. Abernathy’s case,

Chambers—that arguably invalidated some aspect of his sentence. 9

      Given the sweeping language in Prost, 636 F.3d at 589 (“The simple fact is

that Congress decided that, unless subsection (h)’s requirements are met [i.e.,

newly discovered evidence or a new rule of constitutional law that the Supreme

Court made retroactive on collateral review], finality concerns trump and the

litigation must stop after a first collateral attack. Neither is this court free to

reopen and replace Congress’s judgment with our own.”), and the factual

similarities between Prost and the case here, Mr. Abernathy’s claims appear to be

barred, see Stine v. Davis, 442 F. App’x 405, 405–06 (10th Cir. 2011) (“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

      9
              The issue in Prost was slightly different than what we have here because
Mr. Prost argued that he was “actually innocent” of his underlying conviction due to the
Supreme Court’s decision in Santos, whereas Mr. Abernathy claims that he is actually
innocent of his sentencing enhancement under the ACCA as a result of the Supreme
Court’s decision in Chambers.

                                           19
motion mean that it was an inadequate and ineffective remedial vehicle for

challenging his detention.”); see also Brace, 634 F.3d at 1170 (holding that the

defendant is precluded from bringing his Santos-based statutory interpretation

argument under Prost). However, Mr. Abernathy presents two arguments for why

he should be able to proceed under § 2241; in Prost, we did not explicitly address

one of them and we specifically declined to reach the other one. We address them

in turn below and conclude that neither argument is ultimately persuasive.

                                         1

      It is Mr. Abernathy’s burden to show that he meets § 2255(e)’s savings

clause. See Prost, 636 F.3d at 584. To do so, he must demonstrate that § 2255’s

remedy is “inadequate or ineffective” by showing that the legality of his detention

could not have been tested in his initial § 2255 motion. See id. Mr. Abernathy

maintains that he can carry this burden because he could not have tested his

argument that his 1979 escape conviction does not qualify as an ACCA predicate

offense in his initial § 2255 motion. This is so, he says, because the law-of-the-

case doctrine precluded him from raising a claim in his initial § 2255 motion that

he already had raised unsuccessfully on direct appeal. Therefore, reasons Mr.

Abernathy, his argument could not have been tested in his initial § 2255 motion.

      We disagree. Mr. Abernathy is correct that, under the law-of-the-case

doctrine, courts ordinarily would refuse to reconsider arguments presented in a




                                         20
§ 2255 motion that were raised and adjudicated on direct appeal. 10 See Davis, 417

U.S. at 342 (noting that the law-of-the-case doctrine typically precludes

consideration of issues in a § 2255 proceeding that were previously decided on

direct appeal); United States v. Irving, 665 F.3d 1184, 1192–93 (10th Cir. 2011)

(declining to reconsider an argument raised in a § 2255 motion that was addressed

on direct appeal); United States v. LaHue, 261 F.3d 993, 1010–11 (10th Cir.

2001) (“The law of the case doctrine posits that when a court decides upon a rule

of law, that decision should continue to govern the same issues in subsequent

stages in the same case.” (quoting United States v. Alvarez, 142 F.3d 1243, 1247

(10th Cir. 1998)) (internal quotation marks omitted)); see also United States v.

Davis, 406 F.3d 505, 511 (8th Cir. 2005) (declining to reconsider an argument

raised in a § 2255 motion that was addressed on direct appeal); Dall v. United

States, 957 F.2d 571, 572 (8th Cir. 1992) (per curiam) (“[C]laims which were

raised and decided on direct appeal cannot be relitigated on a motion to vacate

pursuant to 28 U.S.C. § 2255.” (alteration in original) (quoting United States v.

Shabazz, 657 F.2d 189, 190 (8th Cir. 1981) (per curiam)) (internal quotation

marks omitted)).

       10
               In making this argument, Mr. Abernathy relies on both the Eighth Circuit’s
law-of-the-case jurisprudence and our own. We need not decide the relevance, if any, of
the Eighth Circuit’s law in this context because we hold that the general principle
animating the law-of-the-case doctrine—that a decision of law in a given case governs the
same issues in all stages of the litigation—will not allow a petitioner to meet our savings
clause test. In any event, the Eighth Circuit’s version of the doctrine appears to be
materially identical to ours, as it relates to Mr. Abernathy’s argument.

                                            21
      However, we reject Mr. Abernathy’s law-of-the-case argument for very

similar reasons to those we found persuasive in rebuffing the erroneous circuit

foreclosure test in Prost. The petitioner suggested in Prost that we should excuse

his failure to pursue an argument in an initial § 2255 motion if that argument was

erroneously foreclosed by binding circuit precedent. See 636 F.3d at 590. We

declined to excuse such a failure, reasoning that “the savings clause doesn’t

guarantee results, only process.” Id.; see also id. at 589 (“[I]t is the infirmity of

the § 2255 remedy itself, not the failure to use it or prevail under it, that is

determinative.”). In that vein, “the plain language of the savings clause does not

authorize resort to § 2241 simply because a court errs in rejecting a good

argument,” even if “the court’s error on the merits happens to be induced by

preexisting circuit precedent.” Id. at 590; see id. (“Critically, Mr. Prost

doesn’t—and can’t—dispute that he was entirely free to raise and test a

Santos-type argument in his initial § 2255 motion. Instead, he argues only that a

Santos-type argument likely would have been rejected on the merits at the district

court and circuit panel levels because of adverse circuit precedent.”).

      Thus, in Prost, it made no difference whether an argument made in an

initial § 2255 motion would have been rejected due to a “newly crafted but

deficient test, or by application of an old but equally bad test found in circuit

precedent.” Id. Similarly, we see no reason why it should matter here that courts

likely would have rejected Mr. Abernathy’s Chambers argument in his § 2255


                                           22
proceeding under the law-of-the-case doctrine. 11

       In other words, just as a prisoner whose argument ordinarily would be

foreclosed by adverse circuit precedent cannot show that § 2255’s remedy is

inadequate or ineffective because nonetheless his argument “could have been

tested in an initial § 2255 motion,” see id. at 584, 590–93, a prisoner (like Mr.

Abernathy) whose argument ordinarily would be barred by the law-of-the-case

doctrine also cannot make such an inadequate-or-ineffective showing because his

argument too could have been tested in his initial § 2255 motion, cf. id. at 592



       11
               Indeed, the law-of-the-case doctrine and binding circuit precedent function
similarly from the perspective of a court addressing an initial § 2255 motion; typically, in
both circumstances, the court is bound by a previous court’s decision unless there has
been an intervening change in the law. See Irving, 665 F.3d at 1192 n.12 (noting that one
exception to the law-of-the-case doctrine is “when controlling authority has subsequently
made a contrary decision of the law applicable to such issues”). Actually, there would be
even more reason for prisoners like Mr. Abernathy to pursue their arguments in § 2255
proceedings than prisoners like Mr. Prost because courts at least have some modicum of
discretion as to whether to apply the law-of-the-case doctrine to bar reexamination of
arguments, see id. at 1192 & n.12 (setting forth three exceptions to the law-of-the-case
doctrine and noting that it “is not a limit on our power . . . nor an inexorable command”
(citations omitted) (internal quotation marks omitted)); LaHue, 261 F.3d at 1010
(describing the law-of-the-case doctrine as a “‘rule of practice’ and not a limit on the
court’s power” (quoting Alvarez, 142 F.3d at 1247)); see also United States v. Serpa, 930
F.2d 639, 640 (8th Cir. 1991) (per curiam) (“Although the law-of-the-case doctrine does
not preclude us from reconsidering and correcting an erroneous decision, we will do so
only to prevent a manifest injustice.”), whereas no such discretion seemingly exists when
a court is faced with binding circuit precedent, see United States v. DeVaughn, 694 F.3d
1141, 1149 n.4 (10th Cir. 2012) (“We cannot, of course, ‘overturn the decision of another
panel of this court barring en banc reconsideration, a superseding contrary Supreme Court
decision, or authorization of all currently active judges on the court.’” (quoting United
States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000))).



                                            23
n.11 (“[T]he difficulty of prevailing on a particular argument does not excuse the

failure to make it in the first place.”). And furthermore, as when confronting

adverse circuit precedent, a prisoner whose argument is rejected on direct appeal

and then subject to the law-of-the-case doctrine in a subsequent § 2255

proceeding, may still pursue his argument through the appellate court with the

hope that at the very least the Supreme Court will grant a petition for certiorari

and vindicate his cause. See id. at 590–91 (“The U.S. Reports are, after all,

replete with instances where the Supreme Court has rewarded litigants who took

the trouble to challenge adverse circuit precedent. While there is of course no

guarantee that any en banc or certiorari petition will be granted, Mr. Prost can’t

dispute that § 2255, as a procedural vehicle, was (and has proven to be) an

adequate and effective means for testing the question he now seeks to pose.”).

      In short, Mr. Abernathy misconstrues the savings clause test that we

adopted in Prost. His challenge to his 1979 escape conviction “could have been

tested in an initial § 2255 motion,” id. at 584, regardless of whether his claim

would have been barred by the law-of-the-case doctrine. Cf. United States v.

Dority, No. 12-7064, 2013 WL 238854, at *1 (10th Cir. Jan. 23, 2013) (“[The

§ 2255(e) savings clause] exception has no application here: no one disputes [the

petitioner] could have brought and tested a Chambers-type challenge to his

sentence in his initial § 2255 motion. Indeed, it’s clear he was fully aware of the

argument: he avidly pursued it at sentencing before the district court yet simply


                                          24
failed to pursue it in his initial § 2255 motion.”). Accordingly, we hold that a

prisoner, like Mr. Abernathy, cannot demonstrate that § 2255’s remedy is

“inadequate or ineffective” to test the legality of his detention merely because the

law-of-the-case doctrine may have barred reconsideration of his claim.

                                          2

      We turn next to Mr. Abernathy’s argument that denying him the

opportunity to seek relief under § 2241 would effectively suspend his right to

seek a writ of habeas corpus in violation of the Constitution’s Suspension Clause.

                                          a

      Mr. Abernathy contends that it would violate the Suspension Clause to

foreclose § 2241 as a potential avenue for relief. However, Mr. Abernathy failed

to raise this argument before the district court—thus, forfeiting it, see Richison v.

Ernest Group, Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011)—and does not

request on appeal that we review it for plain error. Thus, we could permissibly

decline to consider the argument altogether. See id. at 1131 (“[T]he failure to

argue for plain error and its application on appeal—surely marks the end of the

road for an argument for reversal not first presented to the district court.”).

      Yet, the decision regarding what issues are appropriate to entertain on

appeal in instances of lack of preservation is discretionary. See United States v.

McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012) (“[W]e are not obliged to apply

forfeiture principles to [a party’s] briefing omission; such decisions are


                                          25
discretionary.”); cf. Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of

what questions may be taken up and resolved for the first time on appeal is one

left primarily to the discretion of the courts of appeals, to be exercised on the

facts of individual cases.”). In the instant case, certain factors militate in favor of

considering Mr. Abernathy’s Suspension Clause argument, but only under the

demanding plain-error standard.

      We elect to consider Mr. Abernathy’s Suspension Clause argument, at least

in part, because the government neglected to raise his failure to preserve the

argument in its briefing. Such an instance of neglect could function as a

forfeiture of the opportunity to hold Mr. Abernathy to his failure to preserve his

argument. See McGehee, 672 F.3d at 873 n.5 (“[A] colorable argument could be

advanced that we should overlook [the appellant’s] apparent failure to preserve

his acceptance-of-responsibility argument because the government forfeited the

right to object to it” by “not argu[ing] that [the appellant] failed to preserve this

argument.”); cf. United States v. Heckenliable, 446 F.3d 1048, 1049 n.3 (10th Cir.

2006) (“Defendant concedes he did not challenge the validity of his plea before

the district court. The Government, however, does not argue Defendant waived

his present challenge, and accordingly, has waived the waiver.”).

      However, we are nevertheless reluctant to definitively opine on the merits

of Mr. Abernathy’s Suspension Clause argument under de novo review, because

the government has devoted very little time to addressing it, and, thus, we are


                                           26
deprived of the benefit of vigorous adversarial testing of the issue, not to mention

a reasoned district court decision on the subject. Cf. Hill v. Kemp, 478 F.3d 1236,

1251 (10th Cir. 2007) (“Our system of justice, after all, is not a self-directed

inquisitorial one; to avoid error, we are dependent on the full development of

issues through the adversarial process . . . .”). Our reluctance is heightened

because Mr. Abernathy’s argument involves a complicated and little-explored

area of constitutional law. Cf. United States v. Lamirand, 669 F.3d 1091, 1098

n.7 (10th Cir. 2012) (“Given the apparent complexity of th[e] issue . . . we are

reluctant to definitively opine on its merits without a full adversarial framing of

the relevant considerations.”); Prost, 636 F.3d at 594 (declining to reach whether

denying a petitioner access to § 2241 creates a “serious constitutional question”

when it had not been adequately briefed “given that significant and largely

uncharted questions of the Constitution’s meaning, questions whose proper

outcome is far from certain, hang in the balance”).

      In sum, we are inclined to consider Mr. Abernathy’s Suspension Clause

argument, even though we are not obliged to do so. See Richison, 634 F.3d at

1131. However, because of the aforementioned considerations, we inquire only

whether it was plain error for the district court to foreclose Mr. Abernathy from

seeking relief under § 2241. We turn now to that inquiry. 12

      12
              Mr. Abernathy contends that the government conceded the Suspension
Clause issue. We, however, agree with the government that this is not the case. While it
                                                                            (continued...)

                                           27
                                             b

       To succeed under plain-error review, Mr. Abernathy must demonstrate:

“(1) error that is (2) plain, (3) affects substantial rights, and (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.”

DeChristopher, 695 F.3d at 1091. “An error is plain if it is clear or obvious

under current, well-settled law. In general, for an error to be contrary to

well-settled law, either the Supreme Court or this court must have addressed the

issue.” Id. (quoting United States v. Thornburgh, 645 F.3d 1197, 1208 (10th Cir.

2011)) (internal quotation marks omitted). We need not decide whether there was

error—viz., whether the district court’s dismissal of Mr. Abernathy’s § 2241

petition had the effect of violating the Suspension Clause—because even

assuming arguendo that there was error, it would not be plain (i.e., clear or

obvious).

       The Suspension Clause states that “[t]he Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the

       12
          (...continued)
is true that the government stated that the denial of habeas relief to a person who is
actually innocent “might run afoul of the Suspension Clause,” Aplee Br. at 15 n.3, it has
never taken the position that the Suspension Clause actually would be violated here, see
Aplee. Supp. Reply Br. at 14–15. To be sure, to the extent that the government has taken
a position on the Suspension Clause issue, it has been, at best, an equivocal one.
Nevertheless, the government has made clear that it does not concede the issue. And,
ultimately, Mr. Abernathy bears the burden of establishing that the district court’s ruling
amounts to plain error. See United States v. DeChristopher, 695 F.3d 1082, 1091 (10th
Cir. 2012) (holding that it is the burden of the party who failed to preserve his argument
to demonstrate plain error).

                                            28
public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. In assessing whether

any Suspension Clause error here is plain, at the outset, we observe that neither

the Supreme Court nor our court has ever addressed the specific issue before us.

That is, neither court has assayed whether an interpretation of § 2255’s savings

clause (such as we adopted in Prost) that precludes petitioners, like Mr.

Abernathy, from proceeding under § 2241, even though their claims (we assume)

would have been barred in their initial § 2255 proceedings by the law-of-the-case

doctrine, raises serious questions under the Suspension Clause, much less would

effect a violation of it. Therefore, on this basis alone, Mr. Abernathy has a very

tough row to hoe (if not an impossible task) to establish that any error by the

district court on the Suspension Clause issue was clear or obvious. 13

       Indeed, there does not appear to be much that is clear or obvious in the

Suspension Clause area. See Amanda L. Tyler, The Forgotten Core Meaning of

the Suspension Clause, 125 Harv. L. Rev. 901, 903 (2012) (“The Suspension

Clause remains a puzzle.”); cf. INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001)

(describing “what the Suspension Clause protects” as a “difficult question”). As

an initial matter, neither the Supreme Court, nor our court, has decided whether

the Suspension Clause only prohibits suspension of the writ as it existed at the

       13
               Indeed, a panel of our court has previously rejected a similar Suspension
Clause challenge. See In re Alvarado, No. 10-4205 (10th Cir. Order, filed Dec. 2, 2010)
(rejecting petitioner’s Suspension Clause challenge to § 2255(h)’s restriction on the filing
of second or successive habeas petitions despite his assertion that he was actually
innocent of one of the predicate offenses that triggered a career-offender life sentence).

                                            29
time the Constitution was drafted, or whether it also protects against suspension

of the writ as it exists today. See Boumediene v. Bush, 553 U.S. 723, 746 (2008)

(“The Court has been careful not to foreclose the possibility that the protections

of the Suspension Clause have expanded along with post-1789 developments that

define the present scope of the writ.”); id. (“[T]he Court has said that ‘at the

absolute minimum’ the Clause protects the writ as it existed when the

Constitution was drafted and ratified.” (quoting St. Cyr, 533 U.S. at 301)); see

also Felker v. Turpin, 518 U.S. 651, 663–64 (1996) (“[W]e assume, for purposes

of decision here, that the Suspension Clause . . . refers to the writ as it exists

today, rather than as it existed in 1789.”).

      Over the years, some members of the Supreme Court have explicitly

adopted the former view (that is, it only protects against suspension of the writ as

it existed at the time the Constitution was drafted). See Boumediene, 553 U.S. at

832 (Scalia, J., dissenting) (“The writ as preserved in the Constitution could not

possibly extend farther than the common law provided when th[e Suspension]

Clause was written.”); Swain v. Pressley, 430 U.S. 372, 384 (1977) (Burger, C.J.,

concurring) (“The sweep of the Suspension Clause must be measured by reference

to the intention of the Framers and their understanding of what the writ of habeas

corpus meant at the time the Constitution was drafted.”); cf. Morales v. Bezy, 499

F.3d 668, 670 (7th Cir. 2007) (“Over the years, Congress has authorized a much

broader use of habeas corpus; but curtailing an optional statutory enlargement


                                           30
does not violate the suspension clause. That would create an irrational ratchet.

Habeas corpus could always be enlarged, but once enlarged could not be returned

to its previous, less generous scope without a constitutional amendment. Once

this was understood, there would be few if any further enlargements.” (quoting

LaGuerre v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998)) (internal quotation marks

omitted)). Were this the governing view, it is a near certainty that denying Mr.

Abernathy access to § 2241 would not raise serious Suspension Clause concerns,

as the writ as it existed in 1789 was available only in very limited circumstances

that are not implicated here. See, e.g., Swain, 430 U.S. at 385 (Burger, C.J.,

concurring) (“Thus, at common law, the writ was available (1) to compel

adherence to prescribed procedures in advance of trial; (2) to inquire into the

cause of commitment not pursuant to judicial process; and (3) to inquire whether

a committing court had proper jurisdiction. The writ in 1789 was not considered

a means by which one court of general jurisdiction exercises post-conviction

review over the judgment of another court of like authority.” (citations omitted)

(internal quotation marks omitted)); Dallin H. Oaks, Legal History in the High

Court—Habeas Corpus, 64 Mich. L. Rev. 451, 451 (1966) (“[C]ourts have moved

away from using the writ of habeas corpus for its historic functions of eliciting

the cause of commitment and compelling adherence to prescribed procedures in

advance of trial until today it has become primarily a means by which one court

of general jurisdiction exercises post-conviction review over the judgment of


                                         31
another court of like authority.” (footnote omitted)); id. at 468 (noting that under

“[t]he seventeenth and eighteenth century law of habeas corpus . . . . once a

person had been convicted by a superior court of general jurisdiction, a court

disposing of a habeas corpus petition could not go behind the conviction for any

purpose other than to verify the formal jurisdiction of the committing court.”); see

also Tyler, supra, at 921 (“By the time of the Founding, the privilege had evolved

to encompass not just a generic right to due process, but also a particular demand

(derived in large measure from the English Habeas Corpus Act of 1679) that

persons within protection detained for criminal or national security purposes be

charged criminally and tried in due course or discharged.”).

      Nevertheless, even if it were settled that the Suspension Clause protects the

writ as it exists today, it is still unclear whether precluding Mr. Abernathy from

proceeding under § 2241 would implicate the Suspension Clause. It is well-

established that the Suspension Clause does not prohibit the “substitution of a

collateral remedy which is neither inadequate nor ineffective to test the legality of

a person’s detention.” Swain, 430 U.S. at 381 (emphasis added); cf. Miller v.

Marr, 141 F.3d 976, 977 (10th Cir. 1998) (“Whether [AEDPA’s] one-year

limitation period violates the Suspension Clause depends upon whether the

limitation period renders the habeas remedy ‘inadequate or ineffective’ to test the

legality of detention.” (quoting Swain, 430 U.S. at 381)). And at least as a matter

of statutory interpretation—i.e., interpreting the “ineffective or inadequate”


                                          32
language in § 2255(e)—we have held that § 2255’s remedy is neither inadequate

nor ineffective to test the legality of Mr. Abernathy’s detention. See Prost, 636

F.3d at 580 (holding that the petitioner’s “initial § 2255 motion offered him an

adequate and effective means for testing [his statutory interpretation] argument”).

Thus, for purposes of the Suspension Clause, it would hardly seem clear or

obvious that § 2255 would not be an adequate and effective substitute for the

writ.

        As Mr. Abernathy points out, the Supreme Court has held that a statutory

remedy may serve as an adequate substitute for the habeas writ, only so long as it

sufficiently “entitles the prisoner to a meaningful opportunity to demonstrate that

he is being held pursuant to ‘the erroneous application or interpretation’ of

relevant law.” Boumediene, 553 U.S. at 779 (quoting St. Cyr, 533 U.S. at 302).

But how far (if at all) this statement extends into the AEDPA context—as

opposed to the executive detention context of Boumediene—is far from clear. 14

        14
               The Supreme Court in Boumediene emphasized the difference between the
executive detention context and that typical of a state or federal prisoner challenging his
confinement. When a state prisoner is seeking habeas relief from a state court judgment,
“a court of record provides defendants with a fair, adversary proceeding,” and a federal
prisoner too “already has had a chance to seek review of his conviction in a federal forum
through a direct appeal.” Boumediene, 553 U.S. at 782. “In th[e executive detention]
context the need for habeas corpus is more urgent” than in the context of “[a] criminal
conviction in the usual course [that] occurs after a judicial hearing before a tribunal
disinterested in the outcome and committed to procedures designed to ensure its own
independence.” Id. at 783. Detention by executive order “fall[s] outside these
categories.” Id. at 782. And “[w]here a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the need for collateral review is most
                                                                                 (continued...)

                                              33
Furthermore, even if this proposition of Boumediene were controlling in the

AEDPA context, unlike individuals subject to certain forms of executive

detention, Mr. Abernathy seemingly would have already had the meaningful

opportunity to contest the legality of his confinement—which the Supreme Court

contemplated in Boumediene—in his initial § 2255 proceeding.

       Finally, our conclusion that any error was not plain (i.e., clear or obvious)

is bolstered by the fact that even the circuit courts that have held, in certain

circumstances, that § 2255’s bar on second or successive motions raises serious

constitutional concerns, have declined to do so on Suspension Clause grounds,

thus offering virtually no guidance on the issue before us. For example, in

Triestman, the habeas petitioner argued that it would violate the Suspension

Clause and the Fifth Amendment’s Due Process Clause if § 2255 were interpreted

to foreclose judicial review of his claim that he is actually innocent of the crime

for which he stood convicted. See 124 F.3d at 378. The Second Circuit agreed

that such foreclosure would create “serious constitutional questions,” but

concluded that the constitutional concerns emanated from the Eighth Amendment

and the Due Process Clause; it specifically declined to determine “whether th[e]




       14
           (...continued)
pressing.” Id. at 783; see also St. Cyr, 533 U.S. at 301 (“At its historical core, the writ of
habeas corpus has served as a means of reviewing the legality of executive detention, and
it is in that context that its protections have been strongest.”).

                                              34
case present[ed] a significant Suspension Clause question.” 15 Id. at 377–79.

      The Third Circuit in In re Dorsainvil was faced with a similar situation to

the one presented here, as the habeas petitioner maintained that denying him the

ability to pursue his actual innocence claim under § 2241 based upon the Supreme

Court’s retroactive interpretation of the statute under which he was convicted

would violate the Suspension Clause and the Fifth Amendment’s Due Process

Clause. See 119 F.3d at 248. The court concluded that if “no other avenue of

judicial review [is] available for a party who claims that s/he is factually or

legally innocent as a result of a previously unavailable statutory interpretation, we

would be faced with a thorny constitutional issue.” Id. The court avoided the

“thorny constitutional issue” by interpreting the savings clause to permit the

petitioner to proceed under § 2241. See id. It is not at all clear that the Third

Circuit was even referring to the Suspension Clause when it spoke of a “thorny

constitutional issue”; but even if it was, it clearly did not base its decision on that

clause. See id. at 250 (relying in significant part on the Supreme Court’s decision

in Davis, where the Court held that it would constitute a “complete miscarriage of



      15
              Our focus is the Suspension Clause because that is the only constitutional
provision invoked by Mr. Abernathy. We express no view on whether any other
constitutional provision—the Eighth Amendment, the Fifth Amendment’s Due Process
Clause, or any other provision—would compel a different result than the one that we
reach here. Furthermore, to reiterate, we also do not opine on whether the circumstances
of this case would present serious concerns under the Suspension Clause were we
reviewing the matter de novo; we simply hold that under plain-error review Mr.
Abernathy has not demonstrated reversible error based upon the Suspension Clause.

                                           35
justice” if an individual were convicted and punished “for an act that the law does

not make criminal” (quoting Davis, 417 U.S. at 346) (internal quotation marks

omitted)).

      Thus, even those courts that have held there are serious constitutional

concerns when habeas petitioners with claims similar to Mr. Abernathy’s are

precluded from seeking relief under § 2241 have declined to rest their conclusions

on Suspension Clause grounds. Therefore, they shed virtually no light on whether

the Suspension Clause would be violated by denying Mr. Abernathy access to

§ 2241. Thus, not only is it far from well-settled under the law of the Supreme

Court and the Tenth Circuit that Mr. Abernathy’s Suspension Clause argument

has force, but there is virtually no support for Mr. Abernathy’s position in other

circuits as well.

      In conclusion, as we recognized in Prost, there may be situations where

§ 2255(e)’s savings clause may need to be interpreted to avoid “serious

constitutional questions.” 16 636 F.3d at 594. We reach no definitive conclusions,

under a de novo standard of review, regarding whether such serious questions

could ever arise under the Suspension Clause. Instead, we simply hold under the

      16
              When it is appropriate, courts employ the “avoidance canon,” which
provides that “where an otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid such problems unless
such construction is plainly contrary to the intent of Congress.” Hernandez-Carrera v.
Carlson, 547 F.3d 1237, 1249 (10th Cir. 2008) (quoting Edward J. DeBartolo Corp. v.
Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)) (internal
quotation marks omitted).

                                           36
circumstances of this case that it is not clear or obvious under well-settled law

that denying Mr. Abernathy access to a § 2241 habeas remedy through the savings

clause of § 2255(e) would raise serious questions under the Suspension Clause,

much less have the effect of violating that provision. Thus, Mr. Abernathy’s

Suspension Clause claim fails under plain-error review.

                                              C

       Before concluding, we note that, although the district court did not

expressly state that it was dismissing Mr. Abernathy’s petition for lack of

jurisdiction, when a federal petitioner fails to establish that he has satisfied

§ 2255(e)’s savings clause test—thus, precluding him from proceeding under

§ 2241—the court lacks statutory jurisdiction to hear his habeas claims. 17 See 28

       17
               We note that, to the extent that the government urges us to dismiss Mr.
Abernathy’s § 2241 petition on the ground that his Chambers claim lacks merit—that is,
to decide the merits of Mr. Abernathy’s petition before deciding the threshold
jurisdictional issue of whether Mr. Abernathy can proceed at all under § 2241—this
would require us to exercise hypothetical statutory jurisdiction. In other words, we would
need to assume arguendo that statutory jurisdiction was present in order to reach the
merits of Mr. Abernathy’s § 2241 petition. Because we resolve this appeal on
jurisdictional grounds, we have no need to definitively opine on whether the hypothetical-
jurisdiction approach contemplated by the government’s argument would be even viable.
There is some suggestion in the case law that, with respect to statutory jurisdiction, as
opposed to constitutional Article III jurisdiction, it would be. See Yancey v. Thomas, 441
F. App’x 552, 555 n.1 (10th Cir. 2011) (noting that the Supreme Court in Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83 (1998), rejected “the so-called doctrine of
‘hypothetical jurisdiction,’” but in so doing, “repeatedly spoke in terms of Article III
jurisdiction, rather than jurisdiction in general”); cf. Marquez-Almanzar v. INS, 418 F.3d
210, 216 n.7 (2d Cir. 2005) (“The jurisdictional prerequisites to our consideration of the
merits in this case are imposed by statute, not the Constitution, and thus are not a bar to
our assumption of ‘hypothetical jurisdiction’ . . . .”); Bowers v. Nat’l Collegiate Athletic
                                                                                (continued...)

                                             37
U.S.C. § 2255(e) (“An application for a writ of habeas corpus . . . shall not be

entertained . . . unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.” (emphasis added)); Brace, 634

F.3d at 1169–70 (affirming the district court’s dismissal for lack of jurisdiction of

a petitioner’s § 2241 petition, where the petitioner could not meet § 2255(e)’s

savings clause); see also Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)

(concluding that the district court lacked jurisdiction over the petitioner’s § 2241

petition because he failed to meet the Fourth Circuit’s savings clause test);

Harrison v. Ollison, 519 F.3d 952, 961–62 (9th Cir. 2008) (affirming the district

court’s dismissal of a § 2241 petition for lack of jurisdiction because the

petitioner failed to meet the Ninth Circuit’s savings clause test); cf. Palma-

Salazar v. Davis, 677 F.3d 1031, 1038 (10th Cir. 2012) (holding that a § 2241

petitioner’s claim was not cognizable under § 2241 and therefore the district court

lacked jurisdiction).

       Therefore, we construe the district court’s dismissal of Mr. Abernathy’s

petition as resting on a lack of statutory jurisdiction. And, as such, it was a



       17
         (...continued)
Ass’n, 346 F.3d 402, 415–16 (3d Cir. 2003) (“Steel Co. . . . should not be understood as
requiring courts to answer all questions of ‘jurisdiction,’ broadly understood . . . . Instead,
that case requires courts to answer questions concerning Article III jurisdiction before
reaching other questions.”); Restoration Pres. Masonry, Inc. v. Grove Europe Ltd., 325
F.3d 54, 59–60 (1st Cir. 2003) (noting that “statutory jurisdictional disputes are not”
subject to Steel Co. and collecting cases). However, as noted, we need not resolve this
matter here; it is a question for another day.

                                              38
dismissal without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213,

1216 (10th Cir. 2006) (“Since standing is a jurisdictional mandate, a dismissal

with prejudice for lack of standing is inappropriate, and should be corrected to a

dismissal without prejudice.”); Martinez v. Richardson, 472 F.2d 1121, 1126

(10th Cir. 1973) (“It is fundamental, of course, that a dismissal for lack of

jurisdiction is not an adjudication of the merits and therefore dismissal of

[plaintiff’s] claim must be without prejudice.”); cf. Costello v. United States, 365

U.S. 265, 284–55 (1961) (construing a district court’s dismissal as being for lack

of jurisdiction and thus without prejudice, even though the court was silent

regarding whether its dismissal was with or without prejudice).

                                         III

         For the foregoing reasons, we AFFIRM the district court’s dismissal of

Mr. Abernathy’s 28 U.S.C. § 2241 petition for a writ of habeas corpus for a lack

of jurisdiction. We DENY both parties’ motions to supplement the record as

moot, and GRANT Mr. Abernathy’s motion to strike the government’s errata

sheet.




                                          39
