                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 11, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 CARL HASKELL,
                                                         No.12-1384
               Petitioner-Appellant,
          v.                                             (D. of Colo.)
 CHARLES A. DANIELS, Warden,                    (D.C. No. 12-cv-01360-LTB)

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Carl Haskell appeals pro se the dismissal of his petition for writ of habeas

corpus under 28 U.S.C. § 2241 and moves for leave to proceed in forma pauperis




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
on appeal. 1 We deny Haskell’s motion and affirm the district court’s dismissal of

the habeas petition.

                                  I. Background

      Following a jury trial in 2002 in the Western District of Missouri, Haskell

was convicted of murdering a federal witness in violation of 18 U.S.C.

§ 1512(a)(1)(C), among other statutes, and conspiracy to murder a federal witness

in violation of 18 U.S.C. § 371. He was sentenced to life in prison plus five

years. On direct appeal, his conviction was affirmed. United States v. Haskell,

468 F.3d 1064 (8th Cir. 2006), cert. denied, 550 U.S. 965 (2007).

      After the appeal, Haskell exercised his right under 28 U.S.C. § 2255 to

collaterally attack the conviction. According to § 2255(e), a prisoner may

collaterally attack his conviction only if he files his motion for relief in “the court

which sentenced him . . . .” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)

(dismissing without prejudice a collateral attack on the legality of a prisoner’s

detention so the prisoner could refile in the court in which he was sentenced).

Haskell filed his § 2255 motion in the Western District of Missouri, but the

motion was denied on the merits. Haskell v. United States, No. 08-0377-CV-W-

FJG, 2009 WL 877681 (W.D. Mo. Mar. 30, 2009).


      1
        We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we
construe Haskell’s filings liberally because he is proceeding pro se. See Hall v.
Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).


                                          -2-
      When a prisoner is denied relief on his first § 2255 motion, as happened

here, the prisoner cannot file a second § 2255 motion unless he can point to either

“newly discovered evidence” or “a new rule of constitutional law,” as those terms

are defined in § 2255(h). See Prost v. Anderson, 636 F.3d 578, 581 (10th Cir.

2011). The prisoner can, however, file a habeas petition in the district in which

he is incarcerated under 28 U.S.C. § 2241, but only if he first shows that a § 2255

motion is “inadequate or ineffective to test the legality of his detention.” Id.

(quoting § 2255(e)). See generally id. at 582–84. “Failure to obtain relief under

[§] 2255 does not establish that the remedy so provided is either inadequate or

ineffective.” Bradshaw, 86 F.3d at 166 (internal citation and quotation marks

omitted).

      Haskell was serving his sentence in the United States Penitentiary in

Florence, Colorado, when he initiated this action in the District of Colorado by

filing pro se an application for a writ of habeas corpus pursuant to § 2241. 2 In his

application, Haskell alleged, first, that his conviction for murdering a federal

witness in violation of § 1512(a)(1) must be vacated in light of Fowler v. United

States, 131 S. Ct. 2045 (2011) (holding that, in order to prove a violation of

§ 1512(a)(1)(C), the government must show a “reasonable likelihood” that a

relevant communication would have been made to a federal officer but for the


      2
      Haskell has since been transferred to the United States Penitentiary in
Beaumont, Texas.

                                          -3-
victim’s death); second, that his conviction for conspiracy must be vacated in

light of Richardson v. United States, 526 U.S. 813 (1999) (holding that, in order

to find a violation of 21 U.S.C. § 848(a), the jury must unanimously agree the

defendant committed each of the individual drug-statute violations which

constitute a “continuing criminal enterprise”); and third, that he is actually

innocent because there was insufficient evidence to convict him of either offense.

      The district court rejected Haskell’s application. The court concluded that

Haskell failed to demonstrate the inadequacy or ineffectiveness of his prior

§ 2255 motion for relief, because, pursuant to our decision in Prost, a new

Supreme Court case interpreting a statute is not a proper ground for concluding

that a prior § 2255 action was “inadequate or ineffective.” See Prost, 636 F.3d at

584. Further, reasoned the court, Haskell could have cited Richardson, a 1999

case, in his prior § 2255 motion (filed in 2008), and Haskell made no showing as

to why he could not have fully briefed and argued his insufficiency-of-the-

evidence claim in that same § 2255 motion as well. Consequently, the district

court concluded Haskell was not entitled to habeas relief and dismissed his action.

See Haskell v. Daniels, No. 12-cv-01360-LTB, 2012 WL 3591035 (D. Colo. Aug.

21, 2012).

                                 II. Analysis

      On appeal, Haskell argues that his prior § 2255 motion was inadequate or

ineffective because Fowler was not available when he brought the motion, and in

                                          -4-
Fowler, the Supreme Court reinterpreted § 1512(a)(1) such that the evidence at

his trial was insufficient to sustain his conviction. The question before us, then,

is whether a new Supreme Court decision reinterpreting a statute that may undo a

prisoner’s conviction renders the prisoner’s initial § 2255 motion “inadequate or

ineffective,” thereby enabling the prisoner to pursue a habeas petition under

§ 2241.

      This is a question we answered in the negative in Prost, and on that ground,

we agree with the district court that Haskell cannot resort to § 2241 here. 3 In

Prost, we held that if “a petitioner’s argument challenging the legality of his

detention could have been tested in an initial § 2255 motion[,] . . . then the

petitioner may not resort to . . . § 2241.” 636 F.3d at 584 (emphasis added). In

his application for habeas relief, Haskell argued that the government failed to

prove he knew his victim was in fact a federal witness at the time he murdered the

victim, and therefore the government could not have convicted him for violating

§ 1512(a)(1) as a matter of law. But nothing about the procedure of Haskell’s

prior § 2255 motion prevented him from making this same argument then.

Admittedly, he could not have relied on Fowler, a 2011 Supreme Court decision,

when he brought his § 2255 motion in 2008. 4 But it was no different for the

      3
         Our review of the district court’s denial of Haskell’s habeas corpus
petition is de novo. Bradshaw, 86 F.3d at 166.
      4
          We express no opinion on the applicability of Fowler to Haskell’s claim.
                                                                     (continued...)

                                         -5-
petitioner in Prost—he too might have benefitted from a cite to a Supreme Court

decision announced after his § 2255 motion, but we concluded that having a new

Supreme Court decision to cite was not reason enough to find the original § 2255

motion “inadequate or ineffective.” Id. at 589.

      Nor do the cases Haskell cites in his brief—In re Dorsainvil, 119 F.3d 245

(3d Cir. 1997), and Alaimalo v. United States, 645 F.3d 1042 (9th Cir.

2011)—demand a different result. Our decision in Prost already addressed In re

Dorsainvil, noting that the Third Circuit raised “an important question” about the

existence of a constitutional exception to § 2255(h)’s bar to a second collateral

attack but declining to address the question because the petitioner in Prost “at no

point . . . develop[ed] any argument why [denying him access to § 2241 or to a

second § 2255 would violate the Constitution], or even identif[ied] what provision

of the Constitution he thinks would be offended by the imposition of § 2255(h)’s

bar in his case.” 636 F.3d at 594. Haskell’s brief is similarly deficient, so we

again decline to address this question. See Aplt. Br. at 4 (arguing he should be


      4
        (...continued)
We do note, however, that Haskell misstates the Fowler holding. According to
Haskell, the Supreme Court held that, to prove a violation of § 1512(a)(1), the
government must present evidence showing “beyond a reasonable doubt” that the
defendant “kn[e]w that the victim murdered was a federal witness . . . .” R., Vol.
I, at 13 (Haskell’s brief to the district court) (emphasis omitted). In fact, the
Fowler Court held that, to prove a violation of § 1512(a)(1)(C) specifically, the
government must show “that there was a reasonable likelihood that a relevant
communication would have been made to a federal officer” but for the victim’s
death. 131 S. Ct. at 2048 (emphasis in original).

                                         -6-
able to once again collaterally attack his conviction “to avoid a miscarriage of

justice,” but failing to develop any constitutional argument justifying the creation

of a new exception to § 2255(h) or § 2255(e)).

      And in Prost we directly rejected the Ninth Circuit’s position as expressed

most recently in Alaimalo. See Prost, 636 F.3d at 589 (rejecting prior Ninth

Circuit precedent, Harrison v. Ollison, 519 F.3d 952 (9th Cir. 2008)); Alaimalo,

645 F.3d at 1047–48 (following Harrison’s approach).

      In sum, Haskell’s position has been fully addressed—and rejected—in

Prost. And “[w]e cannot overrule the judgment of another panel of this court.

We are bound by the precedent of prior panels absent en banc reconsideration or a

superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723,

724 (10th Cir. 1993). Because Haskell could have made all of the arguments he

made below in his prior § 2255 motion, we cannot say that his § 2255 motion was

“inadequate or ineffective” under the savings clause of § 2255(e). Haskell

therefore cannot bring this habeas petition under § 2241.

                                III. Conclusion

      Accordingly, we AFFIRM the district court below, and we DENY Haskell’s

motion for leave to proceed in forma pauperis.

                                                            Entered for the Court,

                                                            Timothy M. Tymkovich
                                                            Circuit Judge


                                         -7-
