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

                       FOR THE TENTH CIRCUIT                   November 23, 2016
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
JOSEPH MICHAEL MOONEY,

       Petitioner-Appellant,

v.                                                  No. 16-1302
                                           (D.C. No. 1:16-CV-01100-GPG)
DEBRA DUNHAM, Warden,                                (D. Colo.)
Englewood FCI,

       Respondent-Appellee.

                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________


      Mr. Joseph Michael Mooney is a federal prisoner who seeks habeas

relief under 28 U.S.C. § 2241. The district court dismissed Mr. Mooney’s

claim, concluding that Mr. Mooney could not invoke § 2241 because he

had an adequate and effective remedy under 28 U.S.C. § 2255. Mr. Mooney

appeals, and we affirm.

*
      Oral argument would not be helpful in this appeal. As a result, we
are deciding 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 the 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).
      Under § 2255(e), a federal prisoner can challenge the validity of a

sentence under § 2241 only if § 2255 is “inadequate or ineffective to test

the legality of his detention.” Abernathy v. Wandes, 713 F.3d 538, 547

(10th Cir. 2013) (citations omitted). Use of § 2241 is impermissible if the

“petitioner’s argument challenging the legality of his detention could have

been tested in an initial § 2255 motion.” Prost v. Anderson, 636 F.3d 578,

584 (10th Cir. 2011).

      Mr. Mooney cannot use § 2241 because he had an adequate and

effective remedy in § 2255. When Mr. Mooney invoked § 2255, he was

unsuccessful, but his failure to obtain relief under § 2255 does not mean

that the remedy is inadequate or ineffective. See Bradshaw v. Story 86 F.3d

164, 166 (10th Cir. 1996).

      Mr. Mooney argues that Prost v. Anderson was incorrectly decided

and leads to constitutional violations. 1 We reject this argument.

      In Prost, we held that petitioners cannot invoke § 2241 if they could

have tested their claims in an initial motion filed under § 2255. Prost, 636

F.3d at 584. Mr. Mooney argues that Prost was incorrectly decided and that

this opinion leads to violations of the U.S. Constitution. But even if we

disagreed with Prost, we would be bound to follow that opinion because




1
     Mr. Mooney also presses the merits of his underlying claims. But we
do not reach the merits.
                                      2
one panel cannot overrule another panel. United States v. Killion, 7 F.3d

927, 930 (10th Cir. 1993).

      According to Mr. Mooney, the remedy under § 2255 is deficient

because “it fails to allow for a ‘meaningful opportunity’ to raise a claim of

factual innocence.” Appellant’s Br. at 15. But Mr. Mooney had the

opportunity to urge actual innocence when he sought relief under § 2255.

The Constitution does not entitle him to a second opportunity to convince

the court of his actual innocence. Hale v. Fox, 829 F.3d 1162, 1171-72

(10th Cir. 2016), petition for cert. filed (U.S. Oct. 21, 2016) (No. 16-

6511).

      Mr. Mooney argues that denying a second chance at proving actual

innocence would violate the Suspension Clause and the constitutional right

to due process. But we recently rejected virtually identical arguments in

Hale v. Fox. Id. at 1175-76.

                                    * * *

      We cannot grant relief under § 2241 because the § 2255 motion

provided a remedy that was adequate and effective. Thus, we affirm the

dismissal of the § 2241 habeas petition.


                                    Entered for the Court




                                    Robert E. Bacharach
                                    Circuit Judge
                                      3
