                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        February 13, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    RUSSELL L. PREVATTE,

                Petitioner-Appellant,

    v.                                                   No. 05-1332
                                                  (D.C. No. 02-D-1562 (CBS))
    J. E. GUNJA, Warden, U.S.                              (D. Colo.)
    Penitentiary,

                Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



         After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner appeals from the denial of his habeas petition brought under

28 U.S.C. § 2241 pursuant to the “savings clause” of 28 U.S.C. § 2255, which


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
allows a federal prisoner to seek habeas relief in the district where he is confined

when a “remedy by [§ 2255] motion [in the district where he was convicted] is

inadequate or ineffective to test the legality of his detention.” Petitioner used this

unusual remedial route because he had previously been denied relief under § 2255

on other grounds and the circuit with jurisdiction over his criminal prosecution

had subsequently held that he could not satisfy the conditions for bringing a

second-or-successive § 2255 motion on the claim he now asserts. See United

States v. Prevatte, 300 F.3d 792, 798 (7th Cir. 2002). The parties argue various

points regarding § 2255’s savings clause that this court has not yet addressed in a

published opinion. We assume petitioner’s position arguendo and conclude that

the district court properly denied relief thereon. We begin, though, by discussing

a threshold habeas impediment noted by the government that could have, but by

procedural happenstance has not, obviated this whole line of analysis.

      In 1992, petitioner was convicted in a federal district court in Indiana of

illegally using explosives that damaged property in interstate commerce and, in

one instance, resulted in death. See 18 U.S.C. § 844(i). In 1997, he sought and

was denied relief under § 2255. While the issues raised in that proceeding are not

relevant here, the proceeding itself had the critical consequence for petitioner of

triggering § 2255’s limitation on second-or-successive motions.




                                          -2-
      A few years later, the Supreme Court decided Jones v. United States,

529 U.S. 848 (2000), which limited the kind of property deemed to have the

interstate nexus required by § 844(i). Underlying the proceedings thereafter

pursued by petitioner has been his contention that Jones rendered his conviction

on the § 844(i) resulting-in-death count invalid. As he points out, a co-defendant

had his conviction on the count vacated under Jones on a § 2255 motion.

See United States v. Soy, 413 F.3d 594, 600-01, 602 & n.6 (7th Cir. 2005)

(summarizing district court’s unchallenged determination that given wording of

indictment, instructions, and verdict form, jury may have found interstate nexus

on basis rejected in Jones and uncertainty in this regard required vacatur of

conviction). The matter is not so simple for petitioner, however, as he has

already brought a § 2255 motion and Jones, which turned on a new statutory

interpretation rather than a new rule of constitutional law, cannot satisfy the legal

condition for excusing a second-or-successive § 2255 motion. All of which has

led to his efforts to obtain relief by other procedural means.

           I. California Habeas Proceeding and Successive Petitions
                       under 28 U.S.C. §§ 2241 & 2244(a)

      Years before the instant proceeding, defendant sought habeas relief under

§ 2241 in the Central District of California, where he was incarcerated at the time.

The court noted that petitioner’s claim was one that ordinarily must be brought by

§ 2255 motion, which was precluded by the second-or-successive bar, unless the

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savings clause applied. Concluding that petitioner had not made a sufficient

showing to invoke the savings clause, the court dismissed the petition for lack of

subject matter jurisdiction. R. vol. I, doc. 3, ex. 4, at 4.

      Petitioner appealed, specifically “contend[ing] that the district court erred

by dismissing his petition for lack of jurisdiction on the grounds that he had failed

to demonstrate that § 2255 was an inadequate or ineffective remedy.” Prevatte v.

Adams, 27 F.App’x 726, 726 (9th Cir. 2001). The Ninth Circuit affirmed, but

noted that petitioner had been moved to a prison in Colorado and remanded the

case “for the limited purpose of determining if the interests of justice require

transfer of [petitioner’s] section 2241 claim . . . to the district court in Colorado

[under] 28 U.S.C. § 1631.” Id. at 727. The analytical basis for that remand, and

thus the import of the court’s primary holding, is unclear and problematic.

      It is axiomatic “that jurisdiction attaches on the initial filing for habeas

corpus relief, and it is not destroyed by a transfer of the petitioner and the

accompanying custodial change.” Santillanes v. U.S. Parole Comm’n, 754 F.2d

887, 888 (10th Cir. 1985) (collecting cases). The Ninth Circuit adheres to this

principle. See, e.g., Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005),

petition for cert. filed (U.S. Jan. 13, 2006) (No. 05-8678); Francis v. Rison,

894 F.2d 353, 354 (9th Cir. 1990). Thus, petitioner’s transfer to Colorado was

jurisdictionally irrelevant and, after determining that he had not demonstrated an


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entitlement to § 2241 relief under the savings clause, the district court properly

dismissed the action on the latter basis. As noted above, the Ninth Circuit

affirmed but remanded for the district court to consider whether to transfer the

case to Colorado under § 1631. Such a transfer may be made only if the

transferor court lacks jurisdiction that the transferee court could have exercised

when the action was filed. But under established principles of custodial authority,

jurisdiction obviously lay in the district court in California, not Colorado. And in

exercising that jurisdiction, the former had held that § 2241 was not available to

petitioner under the savings clause of § 2255 – meaning that, regardless of where

petitioner might be confined, the only court that could entertain his Jones claim

was his sentencing court (a second, distinct reason precluding any resort to the

district of Colorado). On what basis, then, did the Ninth Circuit contemplate that

the district court in California could possibly have transferred the matter to

Colorado?

      Faced with this direction on remand, the district court read the Ninth

Circuit’s decision to say that it had properly dismissed for lack of jurisdiction, but

that the deficiency derived from petitioner’s removal from the State (which the

district court had not mentioned), rather than the fact that petitioner had failed to

make a case under the savings clause to support § 2241 jurisdiction (which had

been the district court’s express holding). R. vol. I, doc. 3, ex. 3, at 2-3. On this


                                          -5-
reading, the Ninth Circuit’s decision meant that the district court lacked custodial

jurisdiction to reach the question about the savings clause, i.e., the court

“was without jurisdiction to determine if the petitioner’s § 2241 petition

effectively . . . invok[ed] the savings clause of 28 U.S.C. § 2255.” Id. at 3. The

district court then went on to consider the question of transfer under § 1631.

Ironically, the first reason it gave for denying a transfer was the fact that the

district court in Colorado would have lacked jurisdiction when the action was

commenced because petitioner was confined in California at the time. Id. at 4.

Its second reason basically involved a reiteration of its original decision with

regard to the savings clause: petitioner had not shown that he was entitled to

§ 2241 relief under the savings clause (in particular, he could not demonstrate

actual innocence of the § 844(i) count he contends Jones undermined) and thus

a stillborn transfer of his claim to a non-sentencing court was not in the interests

of justice. Id. at 5-8.

       In sum, the same § 2241 claim petitioner pursues here was effectively

rejected (twice) by the district court in California. Ordinarily, that would be the

end of the matter, as a second § 2241 petition that presents no new grounds for

relief is subject to dismissal as a successive petition. 1 George v. Perrill, 62 F.3d


1
       While there is an exception to this bar where it is shown that the “ends of
justice” require consideration of a second petition, George, 62 F.3d at 334, that
                                                                       (continued...)

                                          -6-
333, 334 (10th Cir. 1995) (discussing 28 U.S.C. § 2244(a)); see also Romano v.

Gibson, 239 F.3d 1156, 1168 (10th Cir. 2001) (noting circuit court can affirm

denial of habeas relief on procedural bar grounds even if district court ruled on

other basis). This case, however, is complicated by the obscure decision on

petitioner’s prior appeal. If, as the California district court understood, the

Ninth Circuit held that the district court lacked custodial jurisdiction to consider

the § 2241/savings-clause claim due to petitioner’s removal from the State, that

decision, though patently in error under prevailing habeas principles, nevertheless

had the effect of nullifying the district court’s initial adverse ruling on the claim.

And the district court’s ensuing decision on the limited remand did not

definitively resolve the claim, holding only that it did not justify a transfer under

§ 1631. Hence, notwithstanding the repeated rejection of petitioner’s § 2241

claim by another habeas court clearly acting within its authority under controlling

principles of custodial jurisdiction, it appears we may lack a prior determination

of the claim sufficient to invoke the § 2244(a) bar. We therefore turn to consider

that same claim here.



1
 (...continued)
showing cannot entail merely a second presentation of an argument (here, actual
innocence under Jones) expressly rejected in an earlier proceeding. Otherwise, a
single argument touching on a concern associated with the ends of justice could
underwrite repeated petitions and the exception would fully swallow the rule of
finality preserved by § 2244(a).

                                          -7-
           II. Framework for Analysis under § 2255 Savings Clause

      We begin with two basic premises: (1) unless inadequate or ineffective,

a § 2255 motion “is the exclusive remedy for a federal prisoner attacking the

legality of his detention;” and (2) the fact that the prisoner “may be barred from

filing a second or successive motion pursuant to § 2255 in the sentencing court

does not establish that the remedy provided in § 2255 is inadequate or

ineffective.” Caravalho v. Pugh, 177 F.3d 1177, 1178, 1179 (10th Cir. 1999)

(quoting and expressly agreeing with district court holding). Several circuits have

held, however, that a prisoner in such circumstances may invoke § 2255’s savings

clause and seek relief under § 2241 if he can establish his actual innocence of the

offense of conviction, though this circuit has not yet addressed the question.

See Winfield v. Ray, 74 F.App’x 850, 851 & n.3 (10th Cir. 2003) (unpub.)

(collecting cases and acknowledging unresolved nature of question in this circuit).

We will assume the existence of this actual-innocence exception for purposes of

argument and analyze petitioner’s claim to determine if it would qualify. The

concept of actual innocence is familiar from various procedural-bar contexts, and

we have described its basic contours consistent with its treatment in other courts.

      It is essential to distinguish an actual-innocence claim from the more

common sort of legal error remedied in § 2255 proceedings. As illustrated in the

case of petitioner’s co-defendant, relief may be granted under § 2255 when trial


                                         -8-
error could have resulted in the jury’s reliance on an inadequate or impermissible

basis for conviction, even if the jury could also have found the accused guilty on

one or more other bases. See Soy, 413 F.3d at 600, 602 n.6. On actual-innocence

review, however, the inquiry is just the converse. The focus is not on the error

involved but on whether the petitioner’s guilt is substantially in doubt: “He must

show that ‘in light of all the evidence, it is more likely than not that no reasonable

juror would have convicted him.’” United States v. Barajas-Diaz, 313 F.3d 1242,

1248 (10th Cir. 2002) (quoting United States v. Powell, 159 F.3d 500, 502

(10th Cir. 1998) (further quotation omitted)).

      Thus, the fact that § 2255 relief has been granted to defendants challenging

§ 844(i) convictions under Jones, for example in Soy and United States v. Ryan,

227 F.3d 1058 (8th Cir. 2000), does not lend any support to petitioner’s distinct

§ 2241 claim under the savings clause of § 2255. Our analysis of that claim

involves a case-specific consideration of the facts relevant to his guilt under

§ 844(i), assessed against the stringent actual-innocence standard summarized

above.

     III. Disposition of Petitioner’s Actual Innocence Claim under § 2241

      This habeas action has its immediate genesis in a proceeding petitioner

commenced by way of a motion to recall the mandate from his direct criminal

appeal. The Seventh Circuit construed that motion as a request to certify a


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second-or-successive § 2255 motion, which the court denied for failure to satisfy

the statutory conditions. See Prevatte, 300 F.3d at 796-98. The court went on,

however, to conclude that relief might be available under § 2241, as petitioner

“has brought a non-frivolous challenge to his conviction by alleging that, due to

an intervening decision of the Supreme Court of the United States that narrows

significantly the statute under which he was convicted, he stands convicted of

having committed an act that Congress did not intend to criminalize.” Id. at 802.

Accordingly, the court elected to “transfer the matter before [it] to the . . . District

of Colorado for consideration . . . under § 2241.” Id. A month later, petitioner

filed a formal application for habeas relief in the Colorado district court.

      Petitioner’s challenge to his § 844(i) conviction is fairly straightforward.

He was convicted for setting off an explosive device that damaged a residence

and killed a bystander. The government had argued that a nexus to interstate

commerce was shown by the fact that the damaged residence received natural gas

through interstate lines, which was an accepted means of establishing the element

in the Seventh Circuit. But the Supreme Court expressly rejected this approach in

Jones: “Construing the statute’s text, we hold that an owner-occupied residence

not used for any commercial purpose does not qualify as property ‘used in’

commerce or commerce-affecting activity [for purposes of] federal prosecution

under § 844(i).” Jones, 529 U.S. at 850-51. The Court explained:


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      [Section] 844(i) contains the qualifying words “used in” a
      commerce-affecting activity. The key word is “used.” Congress did
      not define the crime described in § 844(i) as the explosion of a
      building whose damage or destruction might affect interstate
      commerce. Congress required that the damaged or destroyed
      property must itself have been used in commerce or in an activity
      affecting commerce. The proper inquiry . . . is into the function of
      the building itself, and then a determination of whether that function
      affects interstate commerce.

Id. at 854 (quotations and citations omitted). Petitioner argues he was convicted

on a factual basis that Jones clarified is not within the scope of § 844(i). Such an

argument, when borne out by the facts, has been held to warrant relief on grounds

of actual innocence under § 2241. See United States v. Davies, 394 F.3d 182, 196

(3d Cir. 2005); Cf. Martin v. Perez, 391 F.3d 799, 804 (6th Cir. 2004) (rejecting

actual-innocence claim only after finding evidence of nexus to satisfy Jones).

      As explained above, such an argument may well have warranted relief on a

first § 2255 motion. Here, however, where that remedy is no longer available and

petitioner is attempting to use § 2241 as a substitute, we are not concerned with

how the government should or should not have framed its case, but only with

whether petitioner has shown it is more likely than not that no reasonable juror

would have convicted him of the challenged offense. The district court held that

he had not, citing a critical fact relating to the interstate-commerce nexus here

that was not present in Jones. We agree.




                                         -11-
      As recited in the decision on petitioner’s direct appeal, 2 the bombing in

question not only caused the residential damage emphasized by the government

but also punctured a gas meter. 3 United States v. Prevatte, 16 F.3d 767, 771

(7th Cir. 1994). This damaged property did have a function tied to commerce, as

required by Jones. Further, a manager of the regional public service company

testified that it was the exclusive provider of natural gas to the city where

the bombing had taken place and that all of its gas came from out of state.

See R. vol. 1, doc. 1, ex. 7, trial tr. at 1227-29. Given these facts, petitioner

cannot meet his burden on actual innocence; rather, it is more likely than not that

a reasonable jury would have found the requisite interstate nexus under Jones.

      Petitioner summarily objects to this line of reasoning by stating that the

record does not show “that the gas meter . . . was targeted by the bombers, or that

the meter was the separate ‘personal property’ of [the public service company]

rather than a fixture of the house.” Aplt. Opening Br. at 28. Petitioner does not

explain why either of these points is material, and we conclude that they are not.

2
       There has been no challenge to relevant facts recited in appellate decisions
relating to petitioner’s conviction. We note that the record, for which petitioner
(who has had counsel in the district court and on appeal) is responsible, includes
only partial excerpts from the transcript of his trial.
3
      We note that the indictment referred to damage to “a building or other real
and personal property located at 1425 Stanton,” and, thus, as the Seventh Circuit
acknowledged in Soy, “the jury could have based its decision to convict Petitioner
based on the damage to either the residence, the meter, or both.” Soy, 413 F.3d
at 600.

                                         -12-
An intent to damage particular property is not required for conviction under

§ 844(i), for which a malicious or reckless disregard of the likelihood of such

damage is sufficient. See United States v. Wiktor, 146 F.3d 815, 818 (10th Cir.

1998) (citing cases from several circuits); see also United States v. McVeigh,

153 F.3d 1166, 1197 (10th Cir. 1998) (same holding as to mens rea requirement

of similar explosives offense for damage to federal property under § 844(f));

McFadden v. United States, 814 F.2d 144, 145-46 (3d Cir. 1987) (applying

principle to unintended damage caused by explosive device). The ownership of

the meter is immaterial to the offense per se, see § 844(i) (requiring damage to

“any building, vehicle, or other real or personal property”); and, as for interstate

nexus, it is the function of the property that is controlling under Jones and the

relevant commercial function of a gas meter (measuring and keeping continuous

account of usage for purposes of determining payment due provider of interstate

gas) does not turn on who technically owns it.

      As a last resort, petitioner contends the government should be judicially

estopped from disputing his actual innocence on the challenged § 844(i) count.

The basis for this contention is the government’s concession in co-defendant

Soy’s § 2255 proceeding that “the bombing of [the victim’s] private residence was

not a violation of § 844(i).” R. vol. II, doc. 53, attach. 2 (government’s brief on

Soy appeal), at 11, quoted in Aplt. Reply Br. at 4. We need not decide as a


                                         -13-
general matter whether this equitable estoppel notion could or should trump the

fundamental habeas review principles that otherwise control our disposition.

There are much more narrow reasons to reject its application here.

      Although petitioner’s opening brief referred in passing to the government’s

concession, he raised no estoppel argument until his reply brief, and “[t]his court

does not ordinarily review issues raised for the first time in a reply brief.” Stump

v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Moreover, the substance of the

concession is not controlling here. Fairly read in context, the government merely

conceded, consistent with Jones, that the bombing of a private residence is not a

violation of § 844(i) and, thus, Soy’s conviction on that basis was properly

vacated on § 2255 review. But, as we have explained at length and demonstrated

specifically in reference to petitioner’s own case, being entitled to relief under

§ 2255 is not the same thing as showing actual innocence for § 2241 purposes.

Finally, the very authority cited by petitioner demonstrates that the estoppel

principle should not apply here. Its purpose is to prevent a party from gaining an

advantage on the basis of one position and later seeking an inconsistent advantage

by asserting an incompatible position. New Hampshire v. Maine, 532 U.S. 742,

749 (2001). The government’s candid concession regarding the invalidity of

Soy’s conviction hardly constitutes the securing of an advantage which would

warrant imposition of a corresponding disadvantage here.


                                         -14-
      In sum, we conclude that petitioner has failed to demonstrate that he is

entitled to the extraordinary relief sought in this proceeding. The deficiency in

his case is ultimately a function of the limitations Congress has imposed on the

remedy provided in § 2255, in particular its bar on second or successive motions.

Our responsibility is to enforce the statute as written.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Wade Brorby
                                                      Circuit Judge




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