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

                       FOR THE TENTH CIRCUIT                    October 6, 2017
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
WILLIE L. DAVIS,

       Petitioner - Appellant,
                                                    No. 17-1247
v.                                         (D.C. No. 1:17-CV-01126-LTB)
                                                     (D. Colo.)
JACK FOX,

       Respondent - Appellee.

                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before HARTZ, HOLMES and BACHARACH, Circuit Judges.
                 _________________________________


      The petitioner, Mr. Willie L. Davis, is a federal prisoner in Colorado.

He sought habeas relief under 28 U.S.C. § 2241, but the district court

ordered dismissal based on a lack of statutory jurisdiction. On appeal, Mr.




*
      Mr. Davis does not request oral argument, and Mr. Fox has not
appeared in the appeal. As a result, we are deciding the appeal based on the
briefs.

      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).
Davis argues that statutory jurisdiction exists because 28 U.S.C § 2255 is

not adequate or effective. We disagree and affirm the dismissal.

I.    Background

      Mr. Davis was convicted of using a firearm during the commission of

a crime of violence. 18 U.S.C. § 924(c)(1)(A); United States v. Davis, No.

07-cr-20042-STA-1, ECF No. 63 (W.D. Tenn. Aug. 6, 2009). After

unsuccessfully appealing, Mr. Davis filed a motion under 28 U.S.C.

§ 2255, but the district court denied relief. Davis v. United States, No. 12-

cv-02010-STA-cgc, ECF No. 25 (W.D. Tenn. Mar. 30, 2015).

      Mr. Davis then sought permission from the Sixth Circuit to file a

second or successive § 2255 motion. When the court denied permission (In

re: Davis, No. 16-6191 (6th Cir. Oct. 28, 2016)), Mr. Davis filed an

application for a writ of habeas corpus under 28 U.S.C. § 2241. But this

application was also denied. See Davis v. Fox, No. 16-cv-02095-SMH-tmp,

ECF No. 21 at 9 (W.D. Tenn. Mar. 31, 2017).

      This denial led to the petition underlying this appeal: a request for

habeas relief under 28 U.S.C. § 2241. See Davis v. Fox, No. 17-cv-01126-

LTP, ECF No. 9 (D. Colo. June 28, 2017).

II.   Standard of Review

      Our review is de novo. Garza v. Davis, 596 F.3d 1198, 1203 (10th

Cir. 2010).



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III.   The Availability of Habeas Proceedings Under 28 U.S.C. § 2241

       Federal prisoners may challenge the execution of sentences by filing

habeas petitions under § 2241. Brace v. United States, 634 F.3d 1167, 1169

(10th Cir. 2011). But a § 2241 petition generally cannot be used to

challenge the legality of a conviction. Id.; see Prost v. Anderson, 636 F.3d

578, 580 (10th Cir. 2011). Instead, the defendant must ordinarily challenge

the conviction under 28 U.S.C. § 2255. Prost, 636 F.3d at 580.

       A prisoner is generally entitled to only one adequate and effective

opportunity under § 2255 to test the legality of his imprisonment. Id. at

586. But a prisoner can proceed under 28 U.S.C. § 2241 if “the remedy by

[the § 2255] motion is inadequate or ineffective to test the legality of [the]

[imprisonment].” 28 U.S.C. § 2255(e). A § 2255 motion will usually be

considered adequate and effective to test the legality of imprisonment. See

Brace, 634 F.3d at 1169; Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir.

2010).

       To determine whether the remedy in § 2255 is adequate and effective,

we inquire “whether a petitioner’s argument challenging the legality of his

[imprisonment] could have been tested in an initial § 2255 motion.” Prost,

636 F.3d at 584. Under this inquiry, the opportunity to seek a § 2255

remedy must be deemed “genuinely absent” before a prisoner may properly

file a § 2241 petition. Id. at 588. The remedy is absent, for example, when

the sentencing court is abolished or the conviction takes place in a court-

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martial proceeding. See Ackerman v. Novak, 483 F.3d 647, 649 (10th Cir.

2007) (per curiam) (noting that a § 2241 petition is the proper means to

challenge a conviction after a court martial); Spaulding v. Taylor, 336 F.2d

192, 193 (10th Cir. 1964) (holding that the district court had properly

entertained a habeas petition, instead of a § 2255 motion, when the

sentencing court had been abolished).

      Mr. Davis argues that he is innocent and that his sentence violates

the U.S. Constitution. But Mr. Davis enjoyed an adequate and effective

opportunity to challenge his conviction in his initial § 2255 motion.

“‘Failure to obtain relief under § 2255 does not establish that the remedy

so provided is either inadequate or ineffective.’” Bradshaw v. Story, 86

F.3d 164, 166 (10th Cir. 1996) (quoting Williams v. United States, 323

F.2d 672, 673 (10th Cir. 1963)).

IV.   Conclusion

      Because Mr. Davis had an opportunity to challenge the legality of his

conviction in an earlier proceeding under a § 2255 motion, the remedy

under § 2255 is not inadequate or ineffective. Thus, we affirm the

dismissal of the petition.

                                          Entered for the Court




                                          Robert E. Bacharach
                                          Circuit Judge

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