                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 March 17, 2015
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court

 TRACY ALAN BARNETT,

              Petitioner-Appellant,
                                                         No. 14-3188
 v.                                            (D.C. No. 5:13-CV-03203-RDR)
                                                         (D. of Kan.)
 C. MAYE, Warden,

              Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      Tracy Barnett appeals the district court’s dismissal of his 28 U.S.C. § 2241

petition for a writ of habeas corpus. As the Kansas district court noted, 28 U.S.C.

§ 2255 is the exclusive remedy for testing the validity of a sentence unless the

§ 2255 mechanism is somehow inadequate or ineffective for that purpose. Barnett

argued he had previously filed a motion under § 2255 in the District of Iowa and


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
that § 2255’s remedy was inadequate because the Iowa court failed to address

several of his claims.

      The district court below concluded that § 2255 provided an adequate

remedy because nothing in § 2255 prevented the Iowa district court from

considering Barnett’s claims—the problem, if any, was with the Iowa court’s

opinion. It thus concluded that it was without jurisdiction to consider Barnett’s

petition.

      Because we agree with the district court that it lacked jurisdiction over the

petition, we AFFIRM.

                                 I. Background

      Tracy Barnett filed this petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 in the District of Kansas. Although Barnett is currently confined at the

United States Penitentiary in Leavenworth, Kansas, he was originally convicted of

his underlying charges and sentenced in the District of Iowa in 2008.

      After his direct appeal was denied, Barnett filed a motion in the District of

Iowa under 28 U.S.C. § 2255 seeking relief from his sentence. Among other

claims, Barnett argued that sentencing counsel had been ineffective for failing to

object to a miscalculation in his guidelines sentencing range. Barnett also

claimed that his appellate counsel had been ineffective for failing to raise the

ineffective assistance of sentencing counsel issue.



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      In its order dismissing Barnett’s § 2255 motion, the District of Iowa stated

that “Each of the petitioner’s ineffective assistance of counsel claims can be

summarily rejected by the fact that the petitioner testified under oath that he was

fully satisfied with the counsel, representation and advice of his attorney at the

time he pled guilty.” R. Vol. I, Doc. 2, at 5–6. The Eighth Circuit denied the

resulting appeal without issuing an opinion.

      Barnett then filed this petition under § 2241 in the District of Kansas. Prior

to service, the District of Kansas dismissed the petition for lack of jurisdiction.

As the district court noted, § 2255 prohibits district courts from hearing petitions

under § 2241 unless the § 2255 mechanism is somehow inadequate and or

ineffective for challenging the prisoner’s confinement. In anticipation of this

problem, Barnett argued that § 2255 had not provided an adequate remedy

because neither the District of Iowa nor the Eighth Circuit had actually

considered all of his alleged errors. More specifically, Barnett claims his

statement that he was satisfied with counsel, which he made when pleading guilty,

could not be the basis for finding that sentencing and appellate counsel were

adequate. The district court here nonetheless found that § 2255 provided an

adequate remedy because nothing in that section prevented the original district

court from considering Barnett’s claims. The court thus dismissed Barnett’s

petition for lack of jurisdiction.




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                                  II. Discussion

      A district court may not hear a petition for a writ of habeas corpus under

§ 2241 unless a motion under § 2255 would be “inadequate or ineffective to test

the legality of the [petitioner’s] detention.” 28 U.S.C. § 2255(e). “Failure to

obtain relief under § 2255 does not establish that the remedy so provided is either

inadequate or ineffective.” Williams v. United States, 323 F.2d 672, 673 (10th

Cir. 1963) (quoting Overman v. United States, 322 F.2d 649 (10th Cir. 1963)

(internal quotation marks omitted)). Rather, as this court established in Prost v.

Anderson, “[t]he relevant metric or measure . . . is 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 578, 584 (10th Cir. 2011).

      Barnett argues the district court erred in determining that § 2255’s saving

clause should not be applied to his case. More specifically, he contends the

district and appellate courts that heard his initial § 2255 petition failed either to

consider or rule on several claims he presented in that petition. According to

Barnett, the failure to consider his claims rendered § 2255 inadequate and

ineffective and, thus, the District of Kansas has jurisdiction to consider his

petition under § 2241.

      We agree with the district court that it lacked jurisdiction to consider

Barnett’s petition. As this court has repeatedly made clear, § 2255’s saving

                                          -4-
clause concerns the adequacy of § 2255 itself, not the adequacy of another court’s

response to a particular § 2255 petition. Recognizing this, Prost establishes a

straightforward test for determining when the saving clause applies: a prisoner

can only bring a petition under § 2241 when his arguments “could [not] have been

tested in an initial § 2255 motion.” 636 F.3d at 584; see also, e.g., Abernathy v.

Wandes, 713 F.3d 538, 547 (10th Cir. 2013), cert. denied, 134 S. Ct. 1874 (2014)

(applying Prost); Williams, 323 F.2d 673 (finding that the question is whether the

remedy provided by § 2255 is adequate, not whether relief was actually obtained).

       Here, Barnett complains the District of Iowa and the Eighth Circuit failed

to address certain ineffective assistance of counsel arguments that he raised in his

initial § 2255 motion. He does not, however, argue that anything in § 2255

precluded him from bringing those claims or prohibited the courts from hearing

them. Courts routinely consider ineffective assistance claims under § 2255, and

the petitioner admits that the District of Iowa considered at least some of the

ineffective assistance claims he raised. As a result, we find that the remedies

available to the petitioner under § 2255 were neither inadequate nor ineffective to

test the validity of his sentence. 1

       The district court thus did not err in finding that it lacked jurisdiction over

Barnett’s petition.

       1
         We have carefully considered Barnett’s outstanding Motion for Judicial
Notice of Adjudicate Facts. We deny that motion, although none of the facts
offered in it would have changed our analysis in affirming the district court.

                                          -5-
                                III. Conclusion

      The district court’s order dismissing Barnett’s petition for a writ of habeas

corpus is AFFIRMED. We also GRANT Barnett’s motion for leave to proceed in

forma pauperis.

                                                   Entered for the Court,


                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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