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

                       FOR THE TENTH CIRCUIT                    October 22, 2018
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
MARCUS DEANGELO JONES,

       Petitioner–Appellant,
                                                    No. 18-3128
v.                                         (D.C. No. 5:18-CV-03110-JWL)
                                                      (D. Kan.)
NICOLE ENGLISH, Warden,
USP–Leavenworth,

       Respondent–Appellee.
                     _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

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

      This appeal involves the procedures that federal prisoners must

follow when challenging their convictions. After an unsuccessful appeal,

federal prisoners can collaterally challenge their sentences under 28 U.S.C.

§ 2255. But § 2255 contains numerous procedural rules governing such



*
      Mr. Jones does not request oral argument, and it would not materially
aid our consideration of the appeal. Thus, we have decided the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
challenges, including rules on timeliness, venue, and second or successive

petitions. See 28 U.S.C. § 2255(a), (f), (h).

      Presumably hoping to skirt these limits, Mr. Marcus Jones

collaterally challenged his sentence while disavowing an intent to invoke

§ 2255. 1 Notwithstanding this disavowal, the district court recharacterized

Mr. Jones’s collateral challenge as one based on § 2255 and dismissed the

petition for lack of statutory jurisdiction.

      In reviewing the district court’s dismissal for lack of jurisdiction, we

engage in de novo review. Robinson v. Union Pac. R.R., 245 F.3d 1188,

1191 (10th Cir. 2001). In applying this standard of review, we conclude

that the dismissal was proper. Section 2255 supplied Mr. Jones with his

sole remedy for collaterally challenging his conviction. See Bradshaw v.

Story, 86 F.3d 164, 166 (10th Cir. 1996). Yet in district court, Mr. Jones

disclaimed reliance on § 2255, conceding he was ineligible for relief under

§ 2255.

      Mr. Jones contends “that § 2255 does not cover the entire field of

remedies,” relying on United States v. Morgan, 346 U.S. 502 (1954).

Pet’r’s Op. Br. at 8. In Morgan, the Supreme Court held that § 2255 did

not prevent a federal court from granting a writ of coram nobis to an

individual who was no longer in federal custody. 346 U.S. at 511. But Mr.

1
     He also expressly disavowed reliance on the habeas statute (28
U.S.C. § 2241).

                                       2
Jones remains in federal custody. Thus, Morgan is inapplicable: Morgan

“had to do with a situation where § 2255 did not apply because of absence

of federal custody, and its effect is accordingly limited.” Adam v. United

States, 274 F.2d 880, 882 (10th Cir. 1960); see Chaidez v. United States,

568 U.S. 342, 345 n.1 (2013) (“A petition for a writ of coram nobis

provides a way to collaterally attack a criminal conviction for a person . . .

who is no longer ‘in custody’ and therefore cannot seek relief under 28

U.S.C. § 2255 or § 2241.”).

      In addition, Mr. Jones contends that the Constitution’s Suspension

Clause prevents the court from relegating him to a futile motion under

§ 2255. We disagree:

      So long as there is open to the prisoner a remedy in one court,
      with full right of review by appeal and petition for certiorari, it
      is not a suspension of the writ to withhold jurisdiction from
      other Federal courts, except in cases where the remedy in the
      sentencing court is inadequate or ineffective.

Barrett v. Hunter, 180 F.2d 510, 516 (10th Cir. 1950). And Mr. Jones does

not question the adequacy or effectiveness of a remedy under § 2255.

      Finally, Mr. Jones contends that the district court had constitutional

jurisdiction under Article III, Section 2. But even if constitutional

jurisdiction existed, statutory jurisdiction did not. See Abernathy v.

Wandes, 713 F.3d 538, 557 (10th Cir. 2013) (stating that “when a federal

petitioner fails to establish that he has satisfied § 2255(e)’s savings clause

test . . . the court lacks statutory jurisdiction to hear his habeas claim”).

                                       3
Both are necessary for federal jurisdiction. See Estate of Harshman v.

Jackson Hole Mtn. Resort Corp., 379 F.3d 1161, 1164 (10th Cir. 2004)

(stating that “federal courts are courts of limited jurisdiction and require

both constitutional and statutory authority in order to adjudicate a case”).

                                    ** *

      Section 2255 provided the sole remedy available to Mr. Jones to

collaterally challenge his conviction, but he disavowed reliance on this

section and conceded ineligibility for relief under this section. Thus, we

affirm the dismissal. 2

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




2
     Mr. Jones filed a motion to expedite this appeal. This motion
becomes moot with our disposition of the appeal.

                                       4
