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

                            FOR THE TENTH CIRCUIT                          December 21, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 JAMES WARDELL QUARY,

       Petitioner - Appellant,

 v.                                                          No. 18-3212
                                                    (D.C. No. 5:18-CV-03158-SAC)
 N.C. ENGLISH,                                                 (D. Kan.)

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

      Pro se federal prisoner James Quary appeals from the dismissal of his application

for a writ of habeas corpus under 28 U.S.C. § 2241.1 Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the dismissal.2




      *
         This order and judgment is not binding precedent, except under the doctrines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
Tenth Circuit Rule 32.1.
      1
         Because Mr. Quary is pro se, we liberally construe his filings but do not act
as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
      2
        A federal prisoner is not required to obtain a certificate of appealability to
seek review of a district court’s denial of a habeas application under § 2241.
Eldridge v. Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015).
                                  I. BACKGROUND

       Mr. Quary was convicted in 1997 of federal drug and firearms offenses. He was

sentenced to life in prison for the drug crimes and to an additional 60 months for the gun

offense. This court affirmed his convictions on direct appeal. United States v. Quary,

188 F.3d 510 (10th Cir. 1999) (unpublished). The district court denied his first motion

for habeas relief under 28 U.S.C. § 2255 and we denied a certificate of appealability

(“COA”). United States v. Quary, 60 F. App’x 188 (10th Cir. 2003) (unpublished). The

court later reduced his life sentence to 360 months under 18 U.S.C. § 3582(c). Mr. Quary

filed a second § 2255 motion, which the district court dismissed as an unauthorized

second or successive motion. We denied a certificate of appealability to appeal that

decision. United States v. Quary, 881 F.3d 820 (10th Cir. 2018).

       In June 2018, Mr. Quary filed his § 2241 application underlying this appeal. He

argued his firearms conviction under 18 U.S.C. § 924(c) should be vacated because the

aiding and abetting jury instructions at trial were erroneous under Rosemond v. United

States, 572 U.S. 65 (2014).3 The district court said this claim must be raised in a § 2255

motion unless § 2255(e)’s savings clause permitted him to bring his claim under § 2241.

The court concluded the savings clause did not apply and dismissed the § 2241

application.




       3
        In Rosemond, the Supreme Court held that an unarmed accomplice cannot aid
and abet a § 924(c) violation without knowing beforehand “that one of his
confederates will carry a gun.” 572 U.S. at 77.
                                          2
                                     II. DISCUSSION

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

conviction following the conclusion of direct appeal. Brace v. United States, 634 F.3d

1167, 1169 (10th Cir. 2011). But “in rare instances,” Sines v. Wilner, 609 F.3d 1070,

1073 (10th Cir. 2010), a prisoner may attack his underlying conviction by bringing a

§ 2241 habeas corpus application under the “savings clause” in § 2255(e). Brace, 634

F.3d at 1169. That clause provides:

       An application for a writ of habeas corpus [(§ 2241)] in behalf of a
       prisoner who is authorized to apply for relief by motion pursuant to
       this section [(§ 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 [(§ 2255)] is inadequate or
       ineffective to test the legality of his detention.

28 U.S.C. § 2255(e). “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 v. Fox, 829 F.3d 1162, 1165 (10th Cir. 2016) (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

                                               3
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. Quary does not contend his case meets either of the Prost exceptions. As in

the district court, he concedes that, under Prost’s interpretation of § 2255(e), he cannot

rely on Rosemond to proceed under § 2241. In Prost, this court held that, after denial of a

§ 2255 motion, new case precedent construing the law to render a conviction invalid

would not satisfy § 2255(e)’s savings clause. This is so because, even if the new case—

here Rosemond—provides a basis to challenge the conviction, the prisoner “was entirely

free to raise and test a [Rosemond]-type argument in his initial § 2255 motion.” Prost,

636 F.3d at 590.

       On appeal, Mr. Quary argues that Prost was wrongly decided. But, as he seems to

acknowledge, “[o]ne panel of the court cannot overrule circuit precedent.” United States

v. Walling, 936 F.2d 469, 472 (10th Cir. 1991), and “[a]bsent an intervening Supreme

Court or en banc decision justifying such action, we lack the power to overrule [a prior

panel decision].” Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996). Mr.

Quary argues that this case should be heard en banc. Aplt. Br. passim. He asks this panel

to vacate the district court’s dismissal of his § 2241 application “and/or” grant en banc

review “to revisit Prost v. Anderson.” Id. at 24.



                                             4
       As previously explained, we cannot vacate the district court’s dismissal because

Prost binds this panel. We cannot grant en banc review because the en banc court must

make that decision under Federal Rule of Appellate Procedure 35(a). Mr. Quary may

petition for rehearing en banc under Federal Rule of Appellate Procedure 35(b).

       The district court granted Mr. Quary’s request to proceed in forma pauperis (“ifp”)

conditioned on his making partial payments of the filing fee. The provision for partial

payment appears in 28 U.S.C. § 1915(b), which is part of the Prison Litigation Reform

Act (“PLRA”). The PLRA does not apply to § 2241 appeals. McIntosh v. U.S. Parole

Comm., 115 F.3d 809 (10th Cir. 1997). Accordingly, the district court does not need to

assess and should not assess partial payments under § 1915(b). We therefore vacate the

portions of the district court’s order that conditioned Mr. Quary’s ifp status on his making

partial payments of the filing fee.

                                      III. CONCLUSION

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

vacate the partial payment portions of the district court’s ifp order as described above.


                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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