                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS August 4, 2020
                                                                 Christopher M. Wolpert
                                 TENTH CIRCUIT                       Clerk of Court



MICHAEL JACKSON,

      Petitioner-Appellant,
                                                         No. 20-3053
v.                                              (D.C. No. 5:20-CV-03055-JWL
                                                           (D. Kan.)
DON HUDSON, Warden,

      Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.


      Petitioner-Appellant Michael Jackson, proceeding pro se, 1 filed a 28 U.S.C.

§ 2241 petition in the United States District Court for the District of Kansas

alleging that he is innocent in light of Rehaif v. United States, --- U.S. ----, 139

S. Ct. 2191 (2019). The district court dismissed this petition for lack of statutory


      *
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
      1
              Because Mr. Jackson is proceeding pro se, we construe his filings
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the
role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the

district court’s judgment.

                                         I

      A jury convicted Mr. Jackson in the United States District Court for the

Western District of Missouri of a violation of 18 U.S.C. § 922(g)(1) for being a

felon in possession of a firearm. Given his prior convictions, Mr. Jackson was

subject to the penalty-enhancement provision of the Armed Career Criminal Act,

18 U.S.C. § 924(e). The district court sentenced him to 327 months’

imprisonment. The Eighth Circuit affirmed his conviction and sentence.

However, in 2005, the Supreme Court vacated the Eighth Circuit’s judgment and

remanded Mr. Jackson’s case back to the Eighth Circuit for further consideration

in light of United States v. Booker, 543 U.S 220 (2005). See Jackson v. United

States, 543 U.S. 1103 (2005). On remand, the Eighth Circuit held that Mr.

Jackson could not demonstrate plain error in connection with his sentence, and

reinstated its vacated judgment. See United States v. Jackson, 163 F. App’x 451

(8th Cir. 2006) (per curiam) (unpublished). Mr. Jackson unsuccessfully sought

relief under 28 U.S.C. § 2255, and was denied authorization to file a second

motion under that section.

      Subsequently, Mr. Jackson filed the § 2241 petition at issue here in federal

court in the District of Kansas, challenging the validity of his conviction based on


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a recent decision of the United States Supreme Court     Rehaif v. United

States     which held that to convict a criminal defendant under 18 U.S.C. § 922(g),

the government must prove “both that the defendant knew he possessed a firearm

and that he knew he belonged to the relevant category of persons barred from

possessing a firearm.” 139 S. Ct. at 2200 (emphasis added). Before Rehaif, the

government could obtain a felon-in-possession conviction without proving that

the defendant knew he had previously been convicted of a felony. See, e.g.,

United States v. Silva, 889 F.3d 704, 711 (10th Cir. 2018) (citing United States v.

Benford, 875 F.3d 1007, 1015 (10th Cir. 2017)).

         Mr. Jackson argues that Rehaif “was a substantial change in the law” that

renders him innocent of his felon-in-possession offense and that he should be

permitted to proceed under § 2241. Aplt.’s Opening Br. at 3. This is because, he

says, he has “exhausted all of his” rights under § 2255 and § 2241 “is the only

portal avenue available to [him] for entry into this [c]ourt.” Id. at 2 3. The

district court rejected Mr. Jackson’s argument and dismissed his § 2241 petition

for lack of statutory jurisdiction. In pertinent part, the court determined that Mr.

Jackson could not avail himself of § 2241 because he failed to demonstrate that

the remedy provided by his initial § 2255 motion was “inadequate or ineffective”

within the meaning of § 2255(e)’s so-called savings clause. R. at 29, 30 (Dist. Ct.




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Mem. & Order, filed Feb. 21, 2020) (quoting Prost v. Anderson, 636 F.3d 578,

586 (10th Cir. 2011), which in turn quotes § 2255(e)).

                                          II

      We review de novo the district court’s dismissal of Mr. Jackson’s § 2241

petition for lack of jurisdiction. See Brace v. United States, 634 F.3d 1167, 1169

(10th Cir. 2011).

      When a federal prisoner is denied relief on his first § 2255 motion, as

happened here, the prisoner cannot file a second § 2255 motion unless he can

point to either “newly discovered evidence” or a “new rule[] of constitutional

law,” as those terms are defined in § 2255(h). Prost, 636 F.3d at 581. A prisoner

is permitted, however, to file a habeas petition in the federal district in which he

is incarcerated under § 2241, but only if he first demonstrates under § 2255(e)’s

savings clause that the remedy provided under § 2255 was “inadequate or

ineffective” at the time of his initial § 2255 motion. See 28 U.S.C. § 2255(e)

(noting the operative condition as “unless it also appears that the remedy by

motion is inadequate or ineffective to test the legality of his detention”); Prost,

636 F.3d at 589 (“[I]t is the infirmity of the § 2255 remedy itself, not the failure

to use it or to prevail under it, that is determinative. To invoke the savings

clause, there must be something about the initial § 2255 procedure that itself is




                                          4
inadequate or ineffective for testing a challenge to detention.”); accord Abernathy

v. Wades, 713 F.3d 538, 547 (10th Cir. 2013).

      The savings clause    that is, § 2255(e)   is only satisfied “in extremely

limited circumstances.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.

1999); cf. Brace, 634 F.3d at 1169 (stating that “§ 2255 will rarely be an

inadequate or ineffective remedy to challenge a conviction”). Focusing on

matters relevant here, a panel of our court recently summarized well Prost’s

reasoning:

             We explained [in Prost] that “[t]o invoke the savings clause,
             there must be something about the initial § 2255 procedure
             that itself is inadequate or ineffective for testing a challenge to
             detention.” And “the fact that [a defendant] or his counsel
             may not have thought of [a novel statutory interpretation
             argument later approved by a court] earlier doesn’t speak to
             the relevant question whether § 2255 itself provided [the
             defendant] with an adequate and effective remedial mechanism
             for testing such an argument.”

Garcia v. Stancil, 808 F. App’x 666, 669 (10th Cir. 2020) (unpublished) (first

alteration added) (first emphasis added) (citations omitted) (quoting Prost, 636

F.3d at 589); see Lewis v. English, 736 F. App’x 749, 752 (10th Cir. 2018)

(unpublished) (“Lewis notes that several of our sibling circuits follow what’s

known as the erroneous-circuit-foreclosure test. Courts following that test apply

the savings clause if a circuit court’s subsequently overturned interpretation of a

statute precluded relief at the time the § 2241 petitioner moved for relief under


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§ 2255. But we specifically rejected that approach in Prost.” (emphasis added)

(citations omitted)), cert. denied, --- U.S. ----, 139 S. Ct. 1318 (2019). And

“when a federal petitioner fails to establish that he has satisfied § 2255(e)’s

saving clause test   thus, precluding him from proceeding under § 2241       the

court lacks statutory jurisdiction to hear his habeas claims.” Abernathy, 713 F.3d

at 557; accord Jones v. Goetz, 712 F. App’x 722, 726 n.2 (10th Cir. 2017)

(unpublished).

                                          III

      We conclude that the district court correctly dismissed Mr. Jackson’s

§ 2241 petition for lack of statutory jurisdiction. That is because he has not

shown that the remedy provided by his initial § 2255 motion was inadequate or

ineffective, within the meaning of § 2255(e), to challenge his felon-in-possession

conviction. Under Prost, the fact that    after Mr. Jackson filed his initial § 2255

motion   the Supreme Court in Rehaif construed § 922(g) in a manner that might

have provided him, at the time of his motion, a basis for relief does not render the

remedy provided by his initial § 2255 motion inadequate or ineffective. See

Prost, 636 F.3d at 589; accord Garcia, 808 F. App’x at 669. Indeed, a panel of

our court specifically held as much in the context of a § 2241 petition predicated

on Rehaif, and we find that decision persuasive. See Dembry v. Hudson, 796 F.

App’x 972, 975 (10th Cir. 2019) (unpublished) (“[T]hat Rehaif did not exist when


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Dembry initially filed his § 2255 motion or that adverse circuit precedent existed

at the time does not render § 2255’s procedure ineffective or inadequate. The

savings clause in § 2255(e) does not apply here and the district court properly

concluded it lacked jurisdiction to review Dembry’s § 2241 petition.” (citation

omitted)). Accordingly, Mr. Jackson cannot pursue his Rehaif argument in a

§ 2241 petition. The district court correctly dismissed the petition for lack of

statutory jurisdiction.



                                         IV

      For the foregoing reasons, we AFFIRM the district court’s judgment.



                                       ENTERED FOR THE COURT



                                       Jerome A. Holmes
                                       Circuit Judge




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