                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          December 16, 2019
                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 AARON SANDUSKY,

       Plaintiff - Appellant,

 v.                                                             No. 18-1483

 GOETZ, Warden,

       Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                           (D.C. No. 1:18-CV-01436-LTB)
                       _________________________________

Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with her on the briefs), Office of the Federal Public Defender for the District of
Colorado, Denver, Colorado, appearing for Appellant.

Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney,
with him on the briefs), Office of the United States Attorney for the District of Colorado,
Denver, Colorado, appearing for Appellee.
                         _________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

       Petitioner Aaron Sandusky, a federal prisoner serving a 120-month sentence in

connection with two marijuana-trafficking convictions, filed a 28 U.S.C. § 2241

habeas petition asserting that a congressional appropriations rider prevented the

                                                1
Bureau of Prisons (BOP) from expending any funds to incarcerate him during the

applicable time period of the appropriations rider. The district court dismissed the

petition without prejudice for lack of subject matter jurisdiction, concluding that the

proper vehicle for Sandusky’s claim was a motion filed in the sentencing court

pursuant to 28 U.S.C. § 2255. Sandusky now appeals. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we conclude that a motion filed pursuant to § 2241 is

the proper vehicle for the relief that Sandusky seeks. Consequently, we reverse the

judgment of the district court and remand for further proceedings.

                                           I

      a) Sandusky’s background

      According to the record, Sandusky was, prior to his 2012 federal convictions,

employed “as President of G3 Holistic Inc. (G3), which was a California based

Medical Marijuana Cooperative.” ROA, Vol. I at 12. G3 allegedly grew marijuana

plants at a warehouse located in Ontario, California. Id. G3 also allegedly

maintained retail stores in Upland, Colton, and Moreno Valley, California. Id.

at 12-13. At those retail stores, G3 allegedly sold harvested marijuana, live

marijuana plants and clones, and products containing tetrahydrocannabinol (the

principal psychoactive constituent of marijuana). Id. at 12.

      b) Sandusky’s convictions and sentence

      In 2012, a federal grand jury in the United States District Court for the Central

District of California indicted Sandusky and five codefendants on six criminal

counts. The case proceeded to trial that same year. Sandusky was convicted by a

                                           2
jury on two of the six counts alleged in the indictment: (1) conspiracy to manufacture

and possess with the intent to distribute more than 1,000 marijuana plants; and

(2) possession with intent to distribute at least 50 kilograms of a mixture or substance

containing a detectable amount of marijuana. The trial court granted the

government’s motion for mistrial on three of the counts alleged in the indictment. In

January 2013, Sandusky was sentenced to a term of imprisonment of 120 months on

each of the two counts of conviction, with the sentences ordered to run concurrently.

      Sandusky filed a direct appeal. On March 17, 2014, the Ninth Circuit issued

an unpublished memorandum decision affirming Sandusky’s convictions and

sentence. United States v. Sandusky, 564 F. App’x 282, 284 (9th Cir. 2014). In

doing so, the Ninth Circuit rejected Sandusky’s claims of vindictive and selective

prosecution. Id. Further, the Ninth Circuit rejected Sandusky’s argument “that the

government lacked power under the Commerce Clause to prosecute him and that the

Tenth Amendment forbade such prosecution.” Id. (citing Gonzales v. Raich, 545

U.S. 1, 22, 29–33 (2005); Raich v. Gonzales, 500 F.3d 850, 867 (9th Cir. 2007)). In

addition, the Ninth Circuit concluded that “[t]he [trial] court properly excluded an

entrapment by estoppel defense” because, in part, “[n]o authorized government

official ever affirmatively told Sandusky that his marijuana operations were

permissible,” and because “the record demonstrated that Sandusky was never actually

misled” regarding the legality of his marijuana operations. Id.




                                           3
      c) The appropriations riders

      “Despite its legalization in” numerous states and Washington, D.C. “for

medical use” and in a number of states “for recreational use, marijuana is still

classified as a federal ‘controlled substance’ under schedule I of the” Controlled

Substances Act. Green Sol. Retail, Inc. v. United States, 855 F.3d 1111, 1113 (10th

Cir. 2017). The United States Department of Justice, however, “has declined to

enforce [21 U.S.C.] § 841 when a person or company buys or sells marijuana in

accordance with state law.” Id. at 1114.

      Beginning in late 2014, Congress has “reinforced this arrangement by

defunding the” Department of Justice’s “prosecution of the exchange of medical

marijuana where it is legal under state law.” Id. Specifically, in December 2014,

Congress enacted the following rider in an omnibus appropriations bill funding the

government through September 30, 2015:

      None of the funds made available in this Act to the Department of
      Justice may be used, with respect to the States of Alabama, Alaska,
      Arizona, California, Colorado, Connecticut, Delaware, District of
      Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland,
      Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
      Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode
      Island, South Carolina, Tennessee, Utah, Vermont, Washington, and
      Wisconsin, to prevent such States from implementing their own State
      laws that authorize the use, distribution, possession, or cultivation of
      medical marijuana.

Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235,

§ 538, 128 Stat. 2130, 2217 (2014). “Various short-term measures extended the

appropriations and the rider through December 22, 2015.” United States v. McIntosh,


                                           4
833 F.3d 1163, 1169 (9th Cir. 2016). “On December 18, 2015, Congress enacted a

new appropriations act, which appropriate[d] funds through the fiscal year ending

September 30, 2016, and include[d] essentially the same rider in § 542.” Id. (citing

Consolidated Appropriations Act, 2016, Pub. L. No. 114–113, § 542, 129 Stat. 2242,

2332–33 (2015)). The only change in this rider was that it added Guam and Puerto

Rico to the list of states and changed the phrase “prevent such States from

implementing their own State laws” to “prevent any of them from implementing their

own laws.”

      Since 2015, Congress has continued to include this same rider (hereinafter

appropriations rider) in each of its appropriations acts. E.g., Further Continuing

Appropriations Act, 2020, and Further Health Extenders Act of 2019, H.R. 3055,

116th Cong. § 101 (2019); Commerce, Justice, Science, Agriculture, Rural

Development, Food and Drug Administration, Interior, Environment, Military

Construction, Veterans Affairs, Transportation, and Housing and Urban Development

Appropriations Act, 2020, H.R. 3055, 116th Cong. § 531 (2019); Consolidated

Appropriations Act, 2019, H.R. 21 § 537 (2019).

      d) Sandusky’s § 2255 motion

      On June 9, 2015, Sandusky filed in the United States District Court for the

Central District of California (his sentencing court) a pro se motion to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion asserted

eleven separate claims of ineffective assistance of counsel (Grounds 1–8, 10–12), as

well as a claim of unlawful imprisonment (Ground 9). The claim of unlawful

                                           5
imprisonment alleged that the BOP, an agency of the Department of Justice, was

“using funds to incarcerate [Sandusky] in violation of Section 538 of the

Consolidated and Further Continuing Appropriations Act, 2015.” Mot. 6, ECF No. 1

(Sandusky v. United States, No. CV15-04352 (C.D. Cal. 2015)). Sandusky alleged

that his “continued incarceration violate[d] the spirit of the Act which prevent[ed] the

[Department of Justice] from using funds to prevent the implementation of state

medical laws.” Id.

      On November 2, 2015, the district court issued a written order denying

Sandusky’s § 2255 motion on the merits. The district court concluded, in pertinent

part, that Sandusky’s claim that his continued incarceration violated § 538 of the

Consolidated and Further Continuing Appropriations Act was “outside the scope of a

cognizable § 2255 Motion.” Order at 10, ECF No. 14 (Sandusky v. United States,

No. CV15-04352 (C.D. Cal. 2015)). The court noted in support that “§ 2255 is

limited to prisoners ‘claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise subject to collateral

attack . . . .’” Id. (quoting 28 U.S.C. § 2255). “Nothing about [Sandusky’s] § 538

challenge,” the district court concluded, “implicate[d] the Court’s jurisdiction to

impose the sentence or plausibly support[ed] an inference that the sentence was

imposed in violation of the Constitution or laws of the United States, or exceeded the

maximum authorized by law.” Id. The court also concluded, in an apparent

                                           6
alternative holding, that Sandusky’s “continued incarceration simply d[id] not violate

§ 538 because it [wa]s not an expenditure of funds by the Department of Justice that

prevent[ed] California from implementing laws authorizing the use, distribution,

possession, or cultivation of medical marijuana.” Id. Thus, the court concluded,

Sandusky’s “§ 538 claim therefore fail[ed] on the merits.” Id. Sandusky did not

attempt to appeal that order.

      e) The Ninth Circuit’s interpretation of the appropriations rider

      In August 2016, the Ninth Circuit issued an opinion in United States v.

McIntosh, 833 F.3d 1163 (9th Cir. 2016). At issue in that case was “whether criminal

defendants may avoid prosecution for various federal marijuana offenses on the basis

of a congressional appropriations rider that prohibits the . . . Department of Justice

from spending funds to prevent states’ implementation of their own medical

marijuana laws.” Id. at 1168. Although the Ninth Circuit noted that “the rider [wa]s

not a model of clarity,” it concluded that “§ 542,” the version of the appropriations

rider enacted by Congress in 2015, “prohibits DOJ from spending money on actions

that prevent the Medical Marijuana States’ giving practical effect to their state laws

that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Id. at 1175, 1176. The Ninth Circuit in turn concluded:

      DOJ, without taking any legal action against the Medical Marijuana
      States, prevents them from implementing their laws that authorize the
      use, distribution, possession, or cultivation of medical marijuana by
      prosecuting individuals for use, distribution, possession or cultivation of
      medical marijuana that is authorized by such laws. By officially
      permitting certain conduct, state law provides for non-prosecution of
      individuals who engage in such conduct. If the federal government

                                            7
      prosecutes such individuals, it has prevented the state from giving
      practical effect to its law providing for non-prosecution of individuals
      who engage in the permitted conduct.

      We therefore conclude, at a minimum, § 542 prohibits DOJ from
      spending funds from relevant appropriations acts for the prosecution of
      individuals who engaged in conduct permitted by the State Medical
      Marijuana Laws and who fully complied with such laws.

Id. at 1176.

      The Ninth Circuit has since issued additional opinions addressing the meaning

of the appropriations rider. E.g., United States v. Nixon, 839 F.3d 885 (9th Cir. 2016)

(holding that the appropriations rider does not impact the ability of a federal district

court to restrict a defendant’s use of medical marijuana as a condition of probation).

To date, no other circuits have issued published opinions addressing the impact, if

any, of the appropriations rider on pending criminal cases or on existing sentences

imposed on federal criminal defendants. 1

      f) The instant proceedings

      On June 8, 2018, Sandusky, who at that time was confined at the Federal

Prison Camp in Florence, Colorado, initiated these proceedings by filing a pro se

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his amended

petition, Sandusky alleged “that his continued incarceration violate[d] § 538 of the


      1
         In Green Sol. Retail, a Colorado-based marijuana dispensary and its owners
filed a civil suit seeking, on the basis of the appropriations rider, to enjoin the
Internal Revenue Service from investigating the dispensary’s business records. The
district court dismissed the complaint for lack of subject-matter jurisdiction,
concluding that the Anti-Injunction Act and the Declaratory Judgment Act barred the
action. This court affirmed and thus did not address the meaning or application of
the appropriations rider.
                                            8
Consolidated and Further Continuing Appropriations Act, Pub. L. No. 113-235 and

its successor, § 542 of the Consolidated Appropriations Act, Pub. L. No. 115-31.”

ROA, Vol. I at 12. In support, Sandusky alleged that the conduct for which he was

convicted was wholly compliant with California’s then-existing medical marijuana

laws. He asserted that he was entitled to an evidentiary hearing to establish that

alleged compliance. He further asserted that, once that compliance was established,

he was entitled to immediate release from BOP custody.

      The district court ordered respondents to file a preliminary response. In that

preliminary response, respondents argued that the district court “lack[ed] jurisdiction

over . . . Sandusky’s petition, either because: (1) the relief he [wa]s seeking—an

evidentiary hearing which m[ight] or m[ight] not lead to the discovery of evidence

which m[ight] or m[ight] not entitle him to release—d[id] not sound in habeas; or

(2) to the extent . . . Sandusky . . . presented a viable habeas claim, it should proceed

pursuant to 28 U.S.C. § 2255 in the court of conviction . . . , where any evidence of

compliance or non-compliance with California’s medical marijuana laws in effect in

2011 and 2012 would be found.” Id. at 26.

      On December 11, 2018, the district court issued a memorandum opinion and

order dismissing Sandusky’s petition without prejudice. The district court noted it

was Sandusky’s contention that he was “not challenging the validity of his

convictions or sentence, but rather the BOP’s execution of that sentence—i.e., using

federal funds to incarcerate him, in contravention of the Appropriations Act rider.”

Id. at 82–83. But, notwithstanding Sandusky’s contentions, the district court

                                            9
concluded that “[t]he essence of [his] claim [w]as that he should not have been

convicted and sentenced for his conduct in the first place.” Id. at 83. In other words,

the district court concluded, Sandusky was “challeng[ing] the ‘fact’ of his current

BOP custody, which [could not] be untethered from the federal conviction and

sentence that placed him in prison.” Id. The district court therefore concluded that

his “claim implicate[d] the legality of his sentence of imprisonment and must be

asserted in the sentencing court, unless he [could] establish[] that his remedy under

§ 2255 [wa]s inadequate or ineffective pursuant to the ‘savings clause’ of § 2255(e).”

Id. The district court acknowledged that the sentencing court had “determined that

§ 2255 was not the proper vehicle for his claim,” but the district court concluded that

“the remedy under § 2255 [wa]s not inadequate or ineffective simply because the

sentencing court ha[d] already denied relief.” Id. at 83–84. The district court

concluded that Sandusky “ha[d] failed to demonstrate that the remedy under § 2255

[wa]s inadequate or ineffective.” Id. at 84. Consequently, the district court

dismissed the action without prejudice “for lack of statutory jurisdiction.” Id.

      Sandusky filed a notice of appeal on December 19, 2018.

                                           II

      We review de novo the district court’s decision to dismiss Sandusky’s petition

for lack of jurisdiction. See United States v. Luna-Acosta, 715 F.3d 860, 864 (10th

Cir. 2013); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012).

      We begin our analysis by distinguishing between the intended purposes of

§ 2241 and § 2255. Section 2241 states, in pertinent part, that “[t]he writ of habeas

                                          10
corpus shall not extend to a prisoner unless . . . [h]e is in custody under or by color of

the authority of the United States” or “is in custody in violation of the constitution or

laws or treaties of the United States.” 28 U.S.C. § 2241(c)(1), (3). We have held that

“[p]etitions under § 2241 are used to attack the execution of a sentence . . . .”

McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997)

(citations omitted).

      Section 2255 states, in pertinent part:

      A prisoner in custody under sentence of a court established by Act of
      Congress claiming the right to be released upon the ground that the
      sentence was imposed in violation of the Constitution or laws of the
      United States, or that the court was without jurisdiction to impose such
      sentence, or that the sentence was in excess of the maximum authorized
      by law, or is otherwise subject to collateral attack, may move the court
      which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Section 2255 proceedings, we have held, “are used to

collaterally attack the validity of a conviction and sentence.” McIntosh, 115 F.3d

at 811 (citations omitted). More specifically, “Congress has told us that federal

prisoners challenging the validity of their convictions or sentences may seek and win

relief only under the pathways described by § 2255.” 2 Prost v. Anderson, 636 F.3d

578, 580 (10th Cir. 2011).

      Having outlined the distinct purposes of § 2241 and § 2255, we must

determine the type of relief that Sandusky was seeking in the federal habeas petition


      2
        There is one exception to this general rule: “a federal prisoner may resort to
§ 2241 to contest his conviction if but only if the § 2255 remedial mechanism is
‘inadequate or ineffective to test the legality of his detention.’” Prost, 636 F.3d
at 580 (quoting 28 U.S.C. § 2255(e)).
                                           11
that he filed in this case. In his initial habeas petition, Sandusky alleged that

(a) Congress enacted the appropriations rider approximately two years after he was

convicted and sentenced in federal court, (b) the appropriations rider effectively

prohibited the DOJ from spending any funds to “incarcerate individuals who engage

in conduct permitted by State Medical Marijuana Laws and who fully complied with

such laws,” and (c) his “incarceration violate[d] this newly enacted prohibition.”

ECF No. 1 at 2–3. In other words, he asserted, the appropriations rider “forbid[] the

Justice Department and the B.O.P. from expending any funds to execute [his]

sentence.” Id. at 3. “To abide by the law,” Sandusky argued, “the BOP must release

him.” Id. Sandusky emphasized, however, that releasing him would “not mean [he]

w[ould] cease suffering the effects of his conviction.” Id. He noted that he “[wa]s

not challenging his conviction or sentence” and “w[ould] therefore remain a felon in

the eyes of the law, with all of the direct and collateral consequences that status

imposes on his civic and professional life.” Id. He argued that, “[u]nlike [his]

imprisonment, however, those consequences cost the federal government nothing and

therefore compl[ied] with the” appropriations rider. Id.

      In his amended habeas petition, Sandusky similarly alleged that he was

entitled to “an evidentiary hearing to determine whether his actions were wholly

compliant with California state law on medical marijuana and to determine whether

the expenditure of funds by the Bureau of Prisons on his continued incarceration

[wa]s unlawful and therefore require[d] his immediate release.” ECF No. 7 at 4.



                                            12
      Considered together, these allegations quite clearly challenge the execution of

Sandusky’s sentence, rather than the validity of either Sandusky’s convictions or

sentence. To begin with, Sandusky is not seeking to have his convictions overturned.

Indeed, he expressly refutes that notion. Further, Sandusky is not arguing “that [his]

sentence was imposed in violation of the Constitution or laws of the United States, or

that the [sentencing] court was without jurisdiction to impose such sentence, or that

the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255.

Moreover, Sandusky is not asking to have his sentence formally modified in any

manner, and thus is not seeking any relief unique to the sentencing court. To be sure,

he is seeking to be released from the BOP’s custody. But, even if his proposed

interpretation of the appropriations rider should prove to be correct and he establishes

his entitlement to release, Congress could always decide in future appropriation acts

to modify or exclude altogether the appropriations rider. In that event, the BOP

would presumably be free to incarcerate Sandusky again and require him to complete

the remainder of his sentence. For these reasons, we conclude that Sandusky’s

habeas petition was challenging only the execution of his sentence, and not the

validity of his conviction or sentence.

      Because Sandusky’s petition was challenging only the execution of his

sentence, his proper avenue for relief was § 2241 and not § 2255. Thus, the district

court in this case erred in concluding that § 2255 was the proper avenue for relief

and, in turn, in dismissing Sandusky’s petition for lack of jurisdiction. See Davies v.

Benov, 856 F.3d 1243 (9th Cir. 2017) (addressing similar § 2241 habeas corpus

                                          13
petition filed by a federal prisoner seeking relief from his sentence due to the

Appropriations Rider; the Ninth Circuit ultimately did not reach the merits because it

concluded that the petitioner had waived his right to bring the challenge through a

collateral-attack waiver provision in his plea agreement). Therefore, we must reverse

the judgment of the district court and remand for further proceedings to address the

merits of Sandusky’s § 2241 petition.

      One final matter requires our attention. The government argues that Sandusky

is precluded by 28 U.S.C. § 2244(a) from pursuing the claim asserted in his § 2241

petition because that same claim was rejected on the merits by the sentencing court

when it disposed of Sandusky’s § 2255 motion. We disagree. The sentencing court

concluded, correctly in our view, that Sandusky’s challenge to his continued

confinement based on the appropriations rider was not cognizable in a § 2255 motion.

Although the sentencing court alternatively held that Sandusky’s appropriations rider

claim lacked merit, that ruling, in our view, has no preclusive effect because the

sentencing court lacked jurisdiction to consider the merits of the claim. And, in any

event, the claim asserted by Sandusky in his § 2241 petition is based on a different

appropriations rider than the one cited in his § 2255 motion. 3



      3
         Although the appropriations riders that have been enacted to date have been
similarly worded, they each apply to a distinct period of time, and thus arguably give
rise to independent claims for relief. Thus, for example, a ruling on the merits of a
claim based on the 2015 appropriations rider would not preclude a petitioner such as
Sandusky from filing a new claim based on a more recent rider (but the prior ruling
would certainly serve as binding precedent in the subsequent action, assuming that
the wording of the riders is identical or similar). E.g., BZAPS, Inc. v. City of
                                           14
                                            III

       The judgment of the district court is REVERSED and the case is REMANDED

to the district court for further proceedings.




Mankato, 268 F.3d 603, 608 (8th Cir. 2001) (holding that prior Supreme Court
decision “remains precedent that we are obliged to apply to similar cases”).
                                            15
No. 18-1483, Aaron Sandusky v. Goetz, Warden.
KELLY, Circuit Judge, dissenting.
       The court holds that Mr. Sandusky’s allegations in his amended habeas petition

challenge the execution of his sentence rather than the validity of his convictions or

sentence; therefore his petition falls under 28 U.S.C. § 2241, rather than 28 U.S.C.

§ 2255. The court further holds that Mr. Sandusky is not barred by the resolution of this

claim in his prior § 2255 motion. See Sandusky v. United States, No. CV 15-4352 PA,

2015 WL 12724077 (C.D. Cal. Nov. 2, 2015).

       I respectfully dissent and would affirm for substantially the reasons set forth by

the district court. Sandusky v. Goetz, No. 18-CV-01436-LTB, 2018 WL 6505803,

at *4-*5. (D. Colo. Dec. 11, 2018). Mr. Sandusky’s claim that he is not seeking to have

his conviction overturned but rather to enforce appropriations riders (enacted after his

convictions) is a § 2241 challenge only if we elevate form over substance. Make no

mistake, Mr. Sandusky seeks immediate release after an evidentiary hearing to

demonstrate that his offense conduct was compliant with California law (thus requiring

evidence from California, not Colorado). He is challenging the core of the judgment and

commitment order — a term of imprisonment of 120 months in the custody of the Bureau

of Prisons, see 18 U.S.C. § 3621(a) — and should be required to obtain authorization

from the Ninth Circuit for what is a second or successive § 2255 motion. 28 U.S.C. §§

2255(h), 2244. The fact that the California district court afforded him no relief on his

initial § 2255 motion (and from which he did not appeal) does not render that remedy

ineffective such that § 2241 could be used to afford relief.

                                                 1
