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

                            FOR THE TENTH CIRCUIT                         November 30, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 KENNETH L. KIRKLAND,

       Petitioner - Appellant,

 v.                                                         No. 18-3175
                                                   (D.C. No. 5:18-CV-03186-JWL)
 N.C. ENGLISH,                                                (D. Kan.)

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, MATHESON, and EID, Circuit Judges.
                 _________________________________

      Proceeding pro se, federal prisoner Kenneth Kirkland appeals the district

court’s denial of his 28 U.S.C. § 2241 habeas application—his third attempt at habeas

relief and second under § 2241.1 The district court dismissed Mr. Kirkland’s

application because it should have been brought under 28 U.S.C. § 2255 and did not


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
        Mr. Kirkland requests a certificate of appealability, Aplt. Br. at 6-7, but a
federal prisoner is not required to obtain one to seek review of a district court’s
denial of a habeas application under § 2241, Eldridge v. Berkebile, 791 F.3d 1239,
1243 (10th Cir. 2015).
qualify for the exception in § 2255(e)’s savings clause. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                  I.   BACKGROUND

      In 2008, Mr. Kirkland was convicted in the United States District Court for the

Southern District of Illinois of intent to distribute cocaine base in violation of

21 U.S.C. § 841(a)(1). United States v. Kirkland, No. 3:07-cr-30137-MJ-DGW,

(S.D. Ill. Sept. 19, 2008). He was sentenced to 240 months in prison. Id. Mr.

Kirkland received a longer sentence because he had a prior felony drug offense under

21 U.S.C. § 841. In his brief, he reports this predicate offense was for second-degree

drug trafficking under Missouri law. Aplt. Br. at 1. Mr. Kirkland is serving his

sentence at a federal prison in Kansas.

      Mr. Kirkland appealed his conviction to the Seventh Circuit, arguing that:

(1) the police held him for an unreasonable period of time before bringing him before

a magistrate, and (2) the district court erred in failing to suppress his confession. See

United States v. Kirkland, 567 F.3d 316, 318-19 (7th Cir. 2009). The Seventh Circuit

affirmed. Id. at 322. The Supreme Court denied certiorari. Kirkland v. United

States, 558 U.S. 1116 (2010).

      Mr. Kirkland next moved to reduce his sentence based on the Fair Sentencing

Act of 2010. The district court denied this motion. Order Mot. Reduce Sentence,

United States v. Kirkland, No. 3:07-cr-30137-MJ-DGW, (S.D. Ill. Feb. 2, 2012). He

sought the same relief—without success—twice more in the ensuing five years. See

Mem. and Order, United States v. Kirkland, No. 3:07-cr-30137-MJ-DGW (S.D. Ill.

                                            2
May 14, 2015); Min. Order, United States v. Kirkland, No. 3:07-cr-30137-MJ-DGW,

(S.D. Ill. Feb. 2, 2012). Mr. Kirkland also moved for habeas relief under 28 U.S.C.

§ 2255, asserting ineffective assistance of counsel before and during trial. Dismissal

Order, Kirkland v. United States, No. 3:10-cv-00958-MJR, (S.D. Ill. Mar. 4, 2014).

The court dismissed this motion. Id.

      In March 2018, Mr. Kirkland—from federal prison in Kansas—applied for

habeas relief under 28 U.S.C. § 2241. He argued the Supreme Court’s decisions in

Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States,

136 S. Ct. 2243 (2016), provided a previously unavailable tool of statutory

interpretation that undercut the sentencing court’s determination that his Missouri

conviction was a predicate felony drug offense under 21 U.S.C. § 841. The district

court dismissed this application because Mr. Kirkland failed to demonstrate that his

§ 2255 remedy was inadequate under § 2255(e).

      About four months later, Mr. Kirkland filed a second § 2241 application in the

District of Kansas, making the same arguments as he did in the first application. The

district court dismissed for the same reason. Mem. and Order, Kirkland v. English,

No. 5:18-cv-03186-JWL, (D. Kan. Aug. 3, 2018). Mr. Kirkland timely appealed this

second dismissal.

                                 II.   DISCUSSION

      A federal prisoner may pursue habeas relief under two statutes. The first is

28 U.S.C. § 2241—the codification of the original federal habeas statute. See Hale

v. Fox, 829 F.3d 1162, 1166 (10th Cir. 2016). “[A] prisoner must bring a § 2241

                                          3
application in the district where he or she is incarcerated.” Id. Section 2241 does not

limit the number of applications a prisoner may bring. See 28 U.S.C. § 2241; see

also id. § 2244 (limiting habeas applications under § 2254 and § 2255). An

application under 28 U.S.C. § 2241 generally attacks the execution of a sentence

rather than its validity. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).

      The second is 28 U.S.C. § 2255, which Congress enacted in 1948 “to distribute

the work of collateral review more evenly among federal courts” by requiring

prisoners to file in the court that convicted them. Hale, 829 F.3d at 1168. A prisoner

may generally bring only one § 2255 motion, id. at 1165, but may bring a second

motion with a certification from a circuit court that the motion contains:

             (1) newly discovered evidence that, if proven and viewed
             in light of the evidence as a whole, would be sufficient to
             establish by clear and convincing evidence that no
             reasonable factfinder would have found the movant guilty
             of the offense; or

             (2) a new rule of constitutional law, made retroactive to
             cases on collateral review by the Supreme Court, that was
             previously unavailable.

28 U.S.C. § 2255(h).

      “A § 2255 motion is ordinarily the only means to challenge the validity of a

federal conviction following the conclusion of direct appeal.” Hale, 829 F.3d at

1165. But “in rare instances,” the “savings clause” in § 2255(e) permits a prisoner to

avoid § 2255’s restriction on second and successive motions and bring an application

under § 2241 instead. Id. (quotations omitted). The savings clause provides:



                                           4
              An application for a writ of habeas corpus [pursuant to
              § 2241] in behalf of a prisoner who is authorized to apply for
              relief by motion pursuant to [§ 2255], shall not be entertained
              if it appears that the applicant has failed to apply for relief, by
              motion, to the court which sentenced him, or that such court
              has denied him relief, unless it also appears that the remedy
              by motion [pursuant to § 2255] is inadequate or ineffective to
              test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). “Thus, a federal prisoner may file a § 2241

application challenging the validity of his sentence only if § 2255 is inadequate or

ineffective to test the legality of his detention.” Hale, 829 F.3d at 1165 (quotations

omitted).

       A § 2241 applicant “bears the burden of showing he satisfies § 2255(e).” Id. at

1170. “The relevant metric or measure” for application of § 2255(e) “is whether a

petitioner’s argument challenging the legality of his detention could have been tested in

an initial § 2255 motion.” Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011). If the

argument could have been tested in an initial § 2255 motion, “then the petitioner may not

resort to the savings clause and § 2241.” Id. We have identified only two examples in

which § 2255 was inadequate or ineffective: (1) when the sentencing court has been

abolished, or (2) “when the application of § 2255(h)’s bar against a second or

successive motion for collateral review would seriously threaten to render the § 2255

remedial process unconstitutional.” Hale, 829 F.3d at 1173-74 (quotations omitted).

       Mr. Kirkland does not contend his case meets either of the Prost exceptions.

Instead, he urges us to apply a different savings clause gatekeeping rule—the

erroneous-circuit-foreclosure test—recognized in Wooten v. Cauley, 677 F.3d 303,


                                               5
307-08 (6th Cir. 2012), and In re Davenport, 147 F.3d 605, 611 (7th Cir. 1998).

Under this test, the savings clause may be triggered if (1) circuit precedent at the time

of the initial § 2255 motion precluded the applicant from arguing his conduct fell

outside the scope of the statute of conviction, and (2) that precedent is later

overturned, enabling the argument. See Lewis v. English, 736 F. App’x 749, 752

(10th Cir. 2018).

      Mr. Kirkland argues that the Supreme Court announced in Descamps and

Mathis a method of statutory interpretation that would render his prior Missouri

conviction ineligible to enhance his federal sentence. He argues that because

Descamps and Mathis had not been decided when he filed his § 2255 motion, they

enable him to satisfy the savings clause.

      The district court correctly rejected this argument. Even if, under Descamps

and Mathis, his Missouri conviction were ineligible to enhance his federal sentence,

Prost, which rejected the erroneous-circuit-foreclosure test, 636 F.3d at 590-93,

precludes Mr. Kirkland’s savings clause argument. We turned down a similar

argument in Prost—that a new case construing the statute he was convicted and

sentenced under renders that conviction and sentence invalid. As with Mr. Prost, Mr.

Kirkland cannot seek relief under § 2241 because he “was entirely free to raise and

test a [Descamps-and-Mathis]-type argument in his initial § 2255 motion.” Prost,

636 F.3d at 590. Accordingly, we need not evaluate Mr. Kirkland’s argument that his

prior offense fails under Descamps and Mathis to qualify as a felony drug offense for

the purposes of his sentence under 21 U.S.C. § 841.

                                            6
                         III.   CONCLUSION

We affirm the district court’s dismissal of Mr. Kirkland’s § 2241 application.




                                    Entered for the Court


                                    Scott M. Matheson, Jr.
                                    Circuit Judge




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