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

                                     TENTH CIRCUIT                            July 21, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 TIMOTHY DEMITRI BROWN,

           Petitioner - Appellant,

 v.                                                          No. 14-1159
                                                    (D.C. No. 1:14-CV-00162-LTB)
 D. BERKEBILE, Warden,                                         (D. Colo.)

           Respondent - Appellee.


                                 ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Timothy Demitri Brown, a federal prisoner at the Federal Correctional Institution

in Florence, Colorado, appearing pro se,1 appeals the district court’s dismissal of his

application for a writ of habeas corpus under 28 U.S.C. § 2241. Mr. Brown argued

        *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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       1
        Because Mr. Brown is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops,
however, at the point at which we begin to serve as his advocate.” United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
before the district court that “(1) he is entitled to the relief [his co-defendant] was granted

by the Supreme Court; (2) the prosecution withheld exculpatory evidence proving Mr.

Brown’s innocence; and (3) [the statutes under which he was convicted] do not apply to

Mr. Brown” and he is therefore factually innocent. ROA, Vol. I at 56.

       The district court determined Mr. Brown was attempting to challenge his

conviction and sentence and had failed to demonstrate the remedy available to him in the

sentencing court under 28 U.S.C. § 2255 was inadequate or ineffective. It therefore

dismissed his application for lack of statutory jurisdiction. Mr. Brown appeals and

requests leave to proceed in forma pauperis (“ifp”). Exercising jurisdiction under § 1291,

we affirm the district court, dismiss Mr. Brown’s petition, and deny his motion to

proceed ifp.

                                    I. BACKGROUND

       Mr. Brown was convicted of eight counts of drug-related offenses in violation of

21 U.S.C. §§ 841 and 846 in the United States District Court for the Western District of

Louisiana. The court sentenced him to life in prison on May 10, 2002. The United States

Court of Appeals for the Fifth Circuit affirmed his conviction and sentence. See United

States v. Brown, 86 F. App’x 749 (5th Cir. 2004). Mr. Brown did not file a petition for

certiorari to the United States Supreme Court.2


       2
         Mr. Brown asserted in his Motion to Reconsider before the district court in the
District of Colorado that he did file for certiorari. The district court determined that Mr.
Brown filed a petition for certiorari on December 23, 2002—before the Fifth Circuit
                                                                                Continued . . .
                                              -2-
       On January 24, 2005, Mr. Brown filed a 28 U.S.C. § 2255 motion in the Western

District of Louisiana. On January 20, 2006, the court adopted a magistrate judge’s report

and recommendation to deny Mr. Brown’s § 2255 motion.

       Meanwhile, Mr. Brown’s co-defendant, Kenneth Wayne Pearson, filed a writ of

certiorari to the Supreme Court, which remanded Mr. Pearson’s case to the Fifth Circuit

for reconsideration in light of United States v. Booker, 543 U.S. 220 (2005). See Pearson

v. United States, 543 U.S. 1116 (2005) (mem.). The Fifth Circuit remanded Mr.

Pearson’s case to the district court for resentencing. United States v. Pearson, 128 F.

App’x 409 (5th Cir. 2005) (unpublished).

       Mr. Brown filed a motion in Mr. Pearson’s remanded appeal to recall the mandate

from his direct appeal, but the Fifth Circuit refused. Mr. Brown filed a petition for

certiorari from this order, which the Supreme Court denied. Brown v. United States, 546

U.S. 1118 (2006) (mem.).

       Finally, on January 21, 2014, Mr. Brown filed a § 2241 petition in the United

States District Court for the District of Colorado. The district court entered an Order to

Show Cause as to why he did not have an adequate and effective remedy in the

sentencing court in the Western District of Louisiana. After Mr. Brown filed a response,




affirmed his conviction and sentence on February 11, 2004. See ROA, Vol. I at 68. The
Supreme Court dismissed the petition as a “writ of certiorari before judgment.” Id. The
district court concluded this petition was not from the Fifth Circuit’s affirmance on direct
appeal.

                                            -3-
the district court dismissed his petition for lack of statutory jurisdiction because he failed

to make a sufficient showing.

                                      II. DISCUSSION

       Mr. Brown now appeals, contending: (1) the Tenth Circuit’s precedent regarding

adequate or effective remedies under § 2255 violates his equal protection rights3 because

it conflicts with the law of all other circuits, (2) he is actually innocent, and (3) the Tenth

Circuit’s precedent conflicts with Supreme Court precedent regarding the fundamental

miscarriage of justice exception to procedural bars of habeas petitions.4 He also moves to

proceed ifp.

       As a general rule, federal prisoners may challenge their convictions or sentences

only under 28 U.S.C. § 2255. They may challenge the execution of their sentences under

28 U.S.C. § 2241. A § 2255 motion must be filed with the sentencing court, see id.

§ 2255(a); Mr. Brown was sentenced in the Western District of Louisiana. A § 2241

motion must be filed in the federal district court where the movant is incarcerated, see id.

§ 2241(d); Mr. Brown is imprisoned in Colorado.

       A federal prisoner cannot bring more than one § 2255 challenge unless a second or

successive one is based on (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

       3
        Although Mr. Brown does not specify the source of his equal protection claim,
we presume it is based on the Fifth Amendment.
       4
           We have reordered his arguments for ease of presentation.

                                              -4-
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).

       Mr. Brown attempts to challenge his conviction and sentence under § 2241 in

conflict with the general rule that such challenges must be brought under § 2255. He

may rely on § 2241 only under a narrow exception called the “savings clause” contained

in § 2255(e). The savings clause would allow him to bring his § 2241 challenge only if a

§ 2255 “motion is inadequate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e). We agree with the district court that the exception does not apply here.

       In Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011), we held the savings

clause question “is whether a petitioner’s argument challenging the legality of his

detention could have been tested in an initial § 2255 motion.” Mr. Brown has failed to

show how any of the three issues in his § 2241 petition could not have been tested

through a § 2255 motion.

       Mr. Brown already has brought one unsuccessful § 2255 challenge in the Western

District of Louisiana. He has not attempted to bring a second one. Even if he were

precluded from doing so under § 2255(h), that “does not establish the remedy in § 2255 is

inadequate.” Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999); see Prost, 636

F.3d at 586.

       On appeal, Mr. Brown appears to argue that other circuits would allow his § 2241

challenge based on the “erroneous circuit foreclosure” test. Under this test, § 2255 would
                                             -5-
be inadequate or ineffective if Fifth Circuit law, at the time he was convicted and

sentenced, erroneously foreclosed, based on a subsequent Supreme Court decision, the

habeas claims he wishes to bring here. See Reyes-Requena v. United States, 243 F.3d

893, 904 (5th Cir. 2001) (recognizing the test); see also Prost, 636 F.3d at 591

(describing the “erroneous circuit foreclosure test”).

       Of the three claims alleged in Mr. Brown’s § 2241 petition, this test has nothing to

do with his allegation that the prosecution withheld exculpatory evidence and violated his

due process rights under Brady v. Maryland, 373 U.S. 83, 87 (1963), or that he was

convicted under statutes that do not apply to him. These claims plainly could have been

brought under § 2255. Even if his remaining claim—that he is entitled to the relief his

co-defendant received on remand following United States v. Booker, 543 U.S. 220

(2005)—would qualify under the erroneous circuit foreclosure test for consideration

under § 2241, we rejected that test in Prost. 636 F.3d at 595.

       Mr. Brown states our decision in Prost “is different from every other circuit”5 and

argues our rejection of the erroneous circuit foreclosure test violates equal protection.

Aplt. Br. at 3. We reject this argument because a circuit split does not deny Mr. Brown

equal protection. See Roberts v. Holder, 745 F.3d 928, 933 (8th Cir. 2014); Habibi v.

Holder, 673 F.3d 1082, 1088 (9th Cir. 2011).


       5
         Mr. Prost fails to recognize that the circuit courts have applied different tests and
have not, as we explained in Prost, uniformly adopted the erroneous circuit foreclosure
test. See 636 F.3d at 590-93.

                                             -6-
       Mr. Brown’s arguments that he is actually innocent and that our failure to follow

the other circuits in Prost violates the Supreme Court’s “fundamental miscarriage of

justice” exception are equally unavailing. This exception allows courts discretion to

grant federal habeas relief in spite of procedural bars—such as the bar on second and

successive § 2255 motions—where a constitutional violation “has probably resulted in

the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496

(1986); see Herrera v. Collins, 506 U.S. 390, 404 (1993) (“[H]abeas courts [have

discretion] to see that federal constitutional errors do not result in the incarceration of

innocent persons.”). Mr. Brown has not shown how his actual innocence claim could not

have been tested in a § 2255 motion. See Brace v. United States, 634 F.3d 1167, 1169

(10th Cir. 2011) (petitioner bears the burden to show § 2255 inadequate or ineffective).

Mr. Brown also does not show how Prost conflicts with this exception.

       In sum, Mr. Brown has failed to show why a § 2255 motion in the Western

District of Louisiana is inadequate or ineffective under § 2255(e) so as to allow him to

bring his claims in the District of Colorado under § 2241.

       As to Mr. Brown’s motion to proceed ifp, the district court denied his motion for

leave to proceed on appeal ifp pursuant to 28 U.S.C. § 1915 because it determined any

appeal from the order was not in good faith. See Coppedge v. United States, 369 U.S.

438, 445 (1962) (“We consider a defendant's good faith in this type of case demonstrated

when he seeks appellate review of any issue not frivolous.”). We agree with the district

court, conclude this appeal is frivolous, and deny Mr. Brown’s motion to proceed ifp.
                                              -7-
                                  III. CONCLUSION

      For the foregoing reasons, we affirm the district court and dismiss this case for

lack of statutory jurisdiction. We also deny Mr. Brown’s motion to proceed ifp.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




                                           -8-
