                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           January 26, 2015
                                   TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court



 MARCOS ANTONY BOYCE, a/k/a
 MARK BOYCE,
                                                             No. 14-1398
        Petitioner – Appellant,                     (D.C. No. 1:14-CV-01481-LTB)
                                                               (D. Colo.)
 v.

 DAVID BERKEBILE, Warden,

        Respondent – Appellee.


                              ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



       Marcos Boyce, a federal prisoner held in Colorado, appeals following the

dismissal of his 28 U.S.C. § 2241 petition. Exercising jurisdiction under 28 U.S.C.


        * After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
§ 1291, we affirm.

                                               I

       In 1995, Boyce was convicted in the U.S. District Court for the Northern District

of Georgia of being an accessory to the murder of a fellow prisoner. As Boyce

acknowledged below, he has attempted on several occasions to collaterally attack that

conviction. In 1999, Boyce filed a 28 U.S.C. § 2255 habeas motion, which was

dismissed. Boyce then unsuccessfully attempted to challenge the validity of his

underlying conviction via a § 2241 petition filed in the U.S. District Court for the District

of Colorado, which was dismissed in 2001. And, in 2005, the Eleventh Circuit denied

Boyce’s motion for permission to file a second or successive § 2255 motion based on

evidence Boyce claimed to have newly discovered.

       Most recently, Boyce filed, through counsel, a § 2241 petition in the U.S. District

Court for the District of Colorado. The district court dismissed the petition, concluding

that Boyce had an adequate and effective remedy available in the sentencing court, and

the existence of such a remedy deprived it of jurisdiction. Boyce timely appealed.

                                              II

       We review the denial of § 2241 relief de novo. Bradshaw v. Story, 86 F.3d 164,

166 (10th Cir. 1996). A proper § 2241 petition attacks the execution of a sentence and

must be filed where a prisoner is confined. Bradshaw, 86 F.3d at 166. A § 2255 motion,

in contrast, attacks the underlying legality of the detention itself and must be filed in the
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sentencing court. Bradshaw, 86 F.3d at 166. “The exclusive remedy for testing the

validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided

for in 28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see also

28 U.S.C. § 2255(e). Boyce bears the burden of showing that his remedy under § 2255 is

inadequate or ineffective. Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011).

“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) (quotation omitted). “Only in rare instances will § 2255 fail as an adequate or

effective remedy to challenge a conviction or the sentence imposed.” Sines v. Wilner,

609 F.3d 1070, 1073 (10th Cir. 2010).

       On appeal, Boyce contends that he is actually innocent. However, Boyce’s

briefing fails to explain how his asserted innocence entitles him to a remedy under

§ 2241. Our circuit precedent makes “a showing of actual innocence . . . irrelevant” to

whether a remedy under § 2255 is inadequate or ineffective. Abernathy v. Wandes, 713

F.3d 538, 546 n.7 (10th Cir. 2013), cert. denied sub nom. Abernathy v. Cozza-Rhodes,

134 S. Ct. 1874 (2014). Rather, a remedy under § 2255 is adequate or effective as long

as the movant’s “argument challenging the legality of his detention could have been

tested in an initial § 2255 motion.” Id. at 547 (quotation omitted).

       Boyce claims that he could not have raised his actual innocence claim in his initial

habeas proceeding because he did not have access to a recent “confession” in which the
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prisoner whom Boyce was convicted of aiding and abetting—and who was convicted of

the murder at issue—denies that Boyce was involved in the murder. However, under

Abernathy, we do not look to the “the likelihood of success” of a claim; the “inadequate

or ineffective” test “doesn’t guarantee results, only process.” Id. at 548 (quotation

omitted). A remedy is available under § 2241 only if a claim procedurally could not have

been raised at all via § 2255, such as when the original sentencing court has been

dissolved or is unresponsive. See Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.

1999).

         The proper procedure for a federal prisoner who claims newly discovered

evidence demonstrates his innocence is to seek permission to file a second or successive

§ 2255 motion in the sentencing court. See § 2255(h). Boyce notes various issues—

including availability of counsel and time constraints—that would make it more difficult

for him to prevail in the sentencing jurisdiction. But again, the likelihood of success does

not factor into our “inadequate or ineffective” analysis. See Abernathy, 713 F.3d at 548.

Boyce also suggests that the Supreme Court’s decision in McQuiggin v. Perkins, 133 S.

Ct. 1924 (2013), allows him to proceed under § 2241 based on his assertion of actual

innocence. He is incorrect. Perkins discusses an actual innocence “gateway” via which

a prisoner may overcome procedural or time bars in an initial habeas proceeding. See

133 S. Ct. at 1928, 1934. The Perkins Court explicitly noted the different rules that apply

to a second or successive case. Id. at 1933-34 (distinguishing between the heightened
                                            -4-
requirements for second or successive claims and the miscarriage of justice exception

applicable to initial habeas claims).

       Finally, Boyce argues that the district court should have transferred his case to the

original sentencing court. However, to proceed on a second or successive claim in that

court, he must first obtain authorization from the Eleventh Circuit. See § 2255(h). Such

a request for authorization is the appropriate place for Boyce to advance the substantive

claims of error related to his original conviction that he attempts to advance via § 2241.

                                            III

       AFFIRMED.


                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




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