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

                             FOR THE TENTH CIRCUIT                             June 6, 2017
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
NATHAN HILL

      Petitioner–Appellant,

v.                                                             No. 16-1165
                                                  (D.C. No. 1:14-CV-01528-MSK-KLM)
J. OLIVER, Warden                                               (D. Colo.)

      Respondent–Appellee.
                     _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

       Nathan Hill, a federal prisoner, appeals the denial of his application for a writ of

habeas corpus under 28 U.S.C. § 2241. Mr. Hill contends that his sentence is unlawful

under Alleyne v. United States, ––– U.S. ––––, 133 S. Ct. 2151 (2013). The district court

denied his habeas application after concluding that Alleyne does not apply retroactively

on collateral review. Because § 2241 is not the proper vehicle for his Alleyne claim, we

reverse and remand to the district court with instructions to dismiss the case without

prejudice for lack of statutory jurisdiction.

       *
         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 This order and judgment is not binding precedent,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.
                                              *

       In 1999, Mr. Hill was convicted by a federal grand jury of continuing criminal

enterprise, among other offenses. At sentencing, the district court found that Mr. Hill

was the principal leader of the continuing criminal enterprise and the enterprise was

responsible for at least 4,000 kilograms of cocaine. These facts increased his mandatory

minimum from twenty years to a term of life imprisonment under 21 U.S.C. § 848(b).

(Because Mr. Hill was found by the district court to have directed at least two murders,

his sentencing guideline range was also life.)

       Mr. Hill appealed, arguing that, under Apprendi v. New Jersey, 530 U.S 466

(2000), his sentence “violate[d] the due process clause because the jury did not conclude

that the evidence establishes beyond a reasonable doubt the events that led to the life

term[ ].” United States v. Hill, 252 F.3d 919, 921 (7th Cir. 2001). The Seventh Circuit

disagreed, holding that Apprendi does not apply to mandatory minimums. Id. at 921. It

affirmed his conviction and sentence, id. at 929, and the Supreme Court denied Mr. Hill’s

petition for writ of certiorari, see Hill v. United States, 536 U.S. 962 (2002).

       Numerous federal habeas proceedings followed. See Hill v. Daniels, 504 F. App’x

683, 685–86 (10th Cir. 2012) (discussing Mr. Hill’s prior habeas claims and affirming the

dismissal of his third § 2241 motion). In 2003, Mr. Hill challenged his conviction under

28 U.S.C. § 2255. United States v. Hill, No. 03 C 4196, 2004 WL 2064622 (N.D. Ill.

Sept. 13, 2004). In this, his first and only § 2255 motion, he raised ten grounds for relief,

none of which were a renewal of his Apprendi argument. See id. The § 2255 motion was

denied. Id. at *17. Shortly after that, Mr. Hill filed an application with the Seventh

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Circuit seeking permission to file a second or successive § 2255 motion. See Order, Hill

v. United States, No. 06–1344 (7th Cir. Feb. 7, 2006). The application was denied. See

id. Over the next six years, Mr. Hill filed three habeas applications under 28 U.S.C. §

2241. Hill, 504 F. App’x at 685–86. All three were denied. Id.

       In 2013, the Supreme Court decided Alleyne v. United States, ––– U.S. ––––, 133

S. Ct. 2151 (2013), which extended the reasoning of Apprendi to mandatory minimums,

holding that any fact that increases a mandatory minimum is an element that must be

charged in an indictment and proven beyond a reasonable doubt to jury. (This is

essentially what Mr. Hill had argued on direct appeal.) Consequently, Mr. Hill filed the

present § 2241 habeas application—his fourth—asserting that his sentencing was

unlawful under Alleyne because it was the judge, not the jury, who had found the facts

that increased his mandatory minimum. The district court denied Mr. Hill’s habeas

application after concluding that Alleyne does not apply retroactively on collateral

review. Mr. Hill timely appealed.

                                             *

       Mr. Hill challenges his sentence under 28 U.S.C. § 2241. Ordinarily, a motion

under 28 U.S.C. § 2255 is “the only means to challenge the validity of a federal

conviction following the conclusion of direct appeal.” Hale v. Fox, 829 F.3d 1162, 1165

(10th Cir. 2016), cert. denied sub nom. Hale v. Julian, 137 S. Ct. 641 (2017). “But in

rare instances, a prisoner may attack his underlying conviction by bringing a § 2241

habeas corpus application under” § 2255(e)’s savings clause if § 2255 is “inadequate or



                                           -3-
ineffective to test the legality of his detention.” Id. (internal citations and quotation

marks omitted).

       We determine whether the § 2255 remedy was “inadequate or ineffective” by

asking “whether a petitioner’s argument challenging the legality of his detention could

have been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may

not resort to the savings clause and § 2241.” Prost v. Anderson, 636 F.3d 578, 584 (10th

Cir. 2011). This is true even if the argument would likely have failed under existing

circuit precedent or had already been raised and rejected on direct appeal; the question is

whether the argument could have been raised, not whether it would have succeeded. See

id.; see also Abernathy v. Wandes, 713 F.3d 538, 551 (10th Cir. 2013). The habeas

applicant has the burden to show that he satisfies § 2255(e)’s saving clause. Hale, 829

F.3d at 1170. “[W]hen a federal petitioner fails to establish that he has satisfied §

2255(e)’s savings clause test—thus, precluding him from proceeding under § 2241—the

court lacks statutory jurisdiction to hear his habeas claims.” Abernathy, 713 F.3d at 557.

       As Mr. Hill himself concedes, his challenge to the use of judge-found facts to

increase his mandatory-minimum sentence fails under Prost because it could have been

raised in his § 2255 motion. (See Suppl. App. at 8 (“Hill’s Alleyne challenges cannot

meet Prost’s Metric Test.”).) Recognizing this problem, he suggests first that Prost was

wrongly decided. (See Unfiled Pro Se Reply Brief at 5.) But a “panel of this court

cannot overrule the judgment of another panel absent en banc consideration or an

intervening Supreme Court decision that is contrary to or invalidates our previous

analysis,” United States v. Nichols, 775 F.3d 1225, 1230 (10th Cir. 2014) (internal

                                             -4-
quotation marks and alterations omitted), and Mr. Hill has identified no such intervening,

controlling authority.

       Next, Mr. Hill contends that applying Prost to his case would raise serious

constitutional questions under the U.S. Constitution’s Suspension Clause, the Due

Process Clause, and the Eighth Amendment. We disagree. Though we have recognized

“there may be situations where § 2255(e)’s savings clause may need to be interpreted to

avoid ‘serious constitutional questions,’” Abernathy, 713 F.3d at 556–57, this is not one

of them.

       According to Mr. Hill, denying him the opportunity to proceed under § 2241

would violate the Suspension Clause. Not so. “It is well-established that the Suspension

Clause does not prohibit the ‘substitution of a collateral remedy which is neither

inadequate nor ineffective to test the legality of a person’s detention.’” Abernathy, 713

F.3d at 555 (emphasis omitted) (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)).

Here, § 2255 is the relevant “substitute.” Mr. Hill had a full opportunity under § 2255 to

make the claim he presses now. Contrary to his assertions, Mr. Hill was not prevented

from raising it then by the law-of-the-case doctrine or by adverse precedent. See

Abernathy, 713 F.3d at 551.

       Mr. Hill’s Due Process Clause argument also falls short. We recently rejected a

similar challenge in Hale. See Hale, 829 F.3d at 1175–76. In Hale, a federal prisoner

filed a habeas corpus application under 28 U.S.C. § 2241 after having filed an

unsuccessful motion for collateral relief under 28 U.S.C. § 2255. Id. at 1164. There, as

here, the habeas applicant “seiz[ed] upon the constitutional avoidance language in Prost”

                                           -5-
to argue “that applying § 2255(e) to bar his § 2241 [ ] claim would raise serious concerns

under the Due Process and Suspension Clauses.” Id. at 1175. “But,” we held, the habeas

applicant “fail[ed] to identify the basis for his due process interest in collateral review

beyond the procedure he has already received.” Id. Like the habeas applicant in Hale,

Mr. Hill has not identified a substantive right to challenge his conviction “after already

unsuccessfully bringing one round of collateral review.” Id. So, he has failed “[t]o make

out a procedural due process violation in this context.” Id.

       Finally, Mr. Hill contends, without citation to legal authority, that “it is against

cruel and unusual punishment to not provide Hill with an avenue to present his claims of

‘not guilty.’” (Unfiled Pro Se Reply Brief at 8.) But, as explained above, Mr. Hill did

have an avenue to present his Apprendi-based challenge to his sentencing—his 2003 §

2255 motion.

       Because Mr. Hill failed to satisfy § 2255(e)’s savings clause, the district court

lacked statutory jurisdiction to consider his claim. See Abernathy, 713 F.3d at 557.

Instead of dismissing the § 2241 application on this ground, however, the district court

assumed without deciding that it had statutory jurisdiction in order to reach the merits.

This was not necessarily wrong, see id. at 558 n. 17, but by “resolv[ing] this appeal on

jurisdictional grounds, we have no need to definitively opine on whether [this]

hypothetical-jurisdiction approach . . . would be . . . viable.” Id.




                                             -6-
       Accordingly, we REVERSE and REMAND to the district court with instructions

to dismiss the case without prejudice for lack of statutory jurisdiction.



                                                         Entered for the Court


                                                         Monroe G. McKay
                                                         Circuit Judge




                                            -7-
