                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 22, 2013
                                                                 Elisabeth A. Shumaker
                     UNITED STATES COURT OF APPEALS                  Clerk of Court

                                  TENTH CIRCUIT


 GREGORY A. MILTON,

          Petitioner-Appellant,
                                                         No. 12-1198
 v.
                                                (D.C. No. 1:12-CV-00998-LTB)
                                                           (D. Colo.)
 CHARLES A. DANIELS,

          Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Gregory A. Milton, pro se, 1 appeals from the district court’s dismissal of

his petition for a writ of habeas corpus under 28 U.S.C. § 2241. 2 We affirm the

      *
             This order and judgment is not binding precedent except under the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. Milton is proceeding pro se, his filings are construed
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
      2
             As a federal prisoner proceeding under § 2241, Mr. Milton “does not
need a certificate of appealability to appeal a district court’s denial of the
petition.” Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000); see McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 810 n. 1 (10th Cir. 1997) (“[A] certificate
of appealability under the Antiterrorism and Effective Death Penalty Act of 1996
                                                                         (continued...)
district court’s dismissal of his § 2241 petition for lack of jurisdiction.

                                           I

      Mr. Milton was convicted in the United States District Court for the

Western District of Virginia of conspiracy to traffic in crack cocaine, in violation

of 21 U.S.C. § 846; obstruction of interstate commerce by robbery, in violation of

the Hobbs Act, 18 U.S.C. § 1951; and use of a firearm to commit murder, in

violation of 18 U.S.C. § 924(c). He was sentenced to concurrent life terms on the

conspiracy and Hobbs Act convictions and a consecutive life term on the firearm

charge. The Fourth Circuit affirmed his convictions and sentence on appeal. See

United States v. Milton, 153 F.3d 724, 1998 WL 468812, at *1 (4th Cir. 1998)

(per curiam).

      Mr. Milton collaterally challenged his convictions and sentence in the

United States District Court for the Western District of Virginia under 28 U.S.C.

§ 2255. The court denied his § 2255 motion, and the Fourth Circuit denied him a

certificate of appealability. See United States v. Milton, 32 F. App’x 103, 103–04

(4th Cir. 2002) (per curiam). Subsequently, Mr. Milton filed several further

collateral attacks on his convictions and sentence, many of which were explicitly

brought under § 2255 and others that the courts in question construed as seeking



      2
        (...continued)
is not required in order to appeal a final order in a proceeding under 28 U.S.C.
§ 2241.” (citation omitted)).

                                          -2-
relief under that provision. However, Mr. Milton did not prevail on any of these

filings. See, e.g., United States v. Milton, 449 F. App’x 243, 2011 WL 4587571,

at *1 (4th Cir. 2011) (per curiam); United States v. Milton, 367 F. App’x 457,

2010 WL 675025, at *1 (4th Cir. 2010) (per curiam); United States v. Milton, 182

F. App’x 209, 210 (4th Cir. 2006) (per curiam); United States v. Milton, 141 F.

App’x 106, 107 (4th Cir. 2005) (per curiam).

      Mr. Milton brought the instant challenge to his convictions and sentence in

the United States District Court for the District of Colorado under 28 U.S.C.

§ 2241. 3 Typically, challenges to the legality of one’s detention must be brought

under § 2255, but as Mr. Milton recognized, “§ 2255(e) includes a so-called

‘savings clause’ which sometimes allows a federal prisoner to resort to § 2241 to

challenge the legality of his detention.” Prost v. Anderson, 636 F.3d 578, 581

(10th Cir. 2011). To use the savings clause, Mr. Milton must show that “the

remedy [under § 2255] is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). Before the district court, Mr. Milton argued

that § 2255 was inadequate or ineffective because the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) provisions limiting second or successive



      3
              At the time he filed his § 2241 petition, Mr. Milton was confined in
Colorado, and thus the United States District Court for the District of Colorado
was the proper court for his § 2241 challenge. See Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 . . . must be filed
in the district where the prisoner is confined.”).

                                        -3-
petitions are unconstitutional, and also because he has newly discovered evidence

of actual innocence.

      The district court held that Mr. Milton failed to carry his burden of

demonstrating that § 2255 was inadequate or ineffective to test the legality of his

detention. Specifically, the district court held that the past denials of Mr.

Milton’s § 2255 motions and the Fourth Circuit’s failure to authorize the filing of

second or successive § 2255 motions did not make § 2255 inadequate or

ineffective. Mr. Milton filed a motion to reconsider, asserting that the district

court did not address the constitutional questions he raised in his § 2241

petition—questions that we allegedly left open in our Prost decision.

      The district court denied this motion, stating, “[L]ike the § 2241 action in

Prost, nothing Mr. Milton presents satisfies [§ 2255(h)],” which provides the two

grounds for which a court of appeals may authorize the filing of a second or

successive § 2255 motion, and “[f]urthermore, nothing he asserts identifies what

provision of the Constitution is offended by the imposition of this subsection.”

R., Vol. I, at 51 (Order Den. Mot. for Recons., filed May 11, 2012).

      This appeal followed.

                                          II

                                          A

      “A federal prisoner may file a § 2241 petition to challenge the legality of

his conviction under the limited circumstances provided in the so-called ‘savings

                                         -4-
clause’ of § 2255.” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).

One can only proceed under § 2241 by way of the savings clause if “the remedy

[provided] by [§ 2255] is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). “The petitioner bears the burden of

demonstrating that the remedy in § 2255 is inadequate or ineffective.” Brace, 634

F.3d at 1169; see Prost, 636 F.3d at 584.

      “Only in rare instances will § 2255 fail as an adequate or effective remedy

to challenge a conviction or the sentence imposed.” Sines v. Wilner, 609 F.3d

1070, 1073 (10th Cir. 2010). Notably, “[f]ailure to obtain relief under 2255 does

not establish that the remedy so provided is either inadequate or ineffective.”

Bradshaw, 86 F.3d at 166 (quoting Williams v. United States, 323 F.2d 672, 673

(10th Cir. 1963)) (internal quotation marks omitted); see Prost, 636 F.3d at 585.

As set forth in Prost, the relevant inquiry is typically “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.” 636 F.3d at 584.

      As recognized by Mr. Milton, Prost established our general savings clause

test, but left open the question of “[w]hether the savings clause may be used . . .

to avoid serious constitutional questions arising from the application of

§ 2255(h),” and “the [related] questions [of] whether, when, and how the

application of § 2255(h)’s limits on second or successive motions might (ever)

                                          -5-
raise a serious constitutional question.” 636 F.3d at 594.

                                          B

      On appeal, Mr. Milton asserts that § 2255’s remedy is inadequate or

ineffective to test the legality of his detention and thus he should be permitted to

proceed under § 2241. As he did before the district court, Mr. Milton claims that

this is so because AEDPA’s provisions limiting second or successive petitions are

unconstitutional, and because he has newly discovered evidence of actual

innocence. By virtue of these arguments, Mr. Milton contends that he has raised

a serious constitutional question of the kind that we left open in Prost, and were

we to decide this constitutional question in his favor, he could proceed under

§ 2241.

      The district court thoughtfully addressed Mr. Milton’s arguments. For

substantially the same reasons that the district court articulated, we summarily

conclude that Mr. Milton has not carried his burden of demonstrating that he

meets the savings clause. Consequently, Mr. Milton cannot proceed under

§ 2241. 4 That said, a few additional comments with respect to Mr. Milton’s



      4
              Mr. Milton also appeals from the district court’s denial of his motion
for a preliminary injunction to prevent his transfer to another prison facility until
we have decided his appeal. Because Mr. Milton requested the injunction to run
only until this appeal was decided, entry of this order and judgment renders his
request moot. Cf. WildEarth Guardians v. Public Serv. Co., 690 F.3d 1174, 1190
(10th Cir. 2012) (holding that a claim for injunctive relief is moot because the
relief requested had already occurred).

                                         -6-
purported constitutional argument are warranted.

      Mr. Milton argues that the district court was incorrect in stating that he did

not identify what constitutional provisions were implicated by AEDPA’s

limitations on the filing of second or successive § 2255 motions. In this regard,

Mr. Milton says that he identified the provisions before the district court by citing

in his § 2241 motion to a document that he filed in a different case in the United

States District Court for the Western District of Virginia; he submitted this

document, along with other filings from his prior litigation, to the district court

with his § 2241 motion. Apparently, in Mr. Milton’s view, the constitutional

provisions of import here were adequately identified in the Western District of

Virginia filing and, by the sole act of citing to that document, he put the district

court here on notice of them—even though he never expressly identified them for

the court.

      Mr. Milton’s position, however, is legally untenable. The district court was

not required to comb through Mr. Milton’s filings to find legal nuggets to support

his position. See, e.g., FDIC v. Schuchmann, 235 F.3d 1217, 1230 n.11 (10th Cir.

2000); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per

curiam) (“Judges are not like pigs, hunting for truffles buried in briefs.”). As we

have recognized in the appellate context, incorporation by reference is a sorry

briefing technique and it seldom (if ever) will be an adequate means to convey an

argument to a court. See In re Antrobus, 563 F.3d 1092, 1097 (10th Cir. 2009)

                                          -7-
(“[W]e have disapproved of parties adopting their previous filings in lieu of fully

setting forth their argument before this court.”); Concrete Works of Colo., Inc. v.

City & Cnty. of Denver, 321 F.3d 950, 979 n.14 (10th Cir. 2003) (“This court is

under no obligation to consider arguments not fully set forth in a party’s appellate

brief, including arguments incorporated by reference to prior pleadings or other

materials.”); see also 10th Cir. R. 28.4 (“Incorporating by reference portions of

lower court or agency briefs or pleadings is disapproved . . . .”). Even though the

court was obliged to construe Mr. Milton’s pro se filings liberally, he bore the

burden of making his constitutional argument, and the court would have strayed

into an impermissible zone if it had endeavored to make the argument for him.

See, e.g., Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir.

2012) (“[A]s we often reiterate, the generous construction that we afford pro se

pleadings has limits, and we must avoid becoming the plaintiff’s advocate.”);

United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[B]ecause Pinson

appears pro se, we must construe his arguments liberally; this rule of liberal

construction stops, however, at the point at which we begin to serve as his

advocate.”).

      Indeed, Mr. Milton does not even expressly inform us of the constitutional

provisions upon which he relies. Arguably, his constitutional argument is

therefore dead on arrival. Nevertheless, insofar as we can discern the contours of

Mr. Milton’s constitutional challenge—absent reference to specific constitutional

                                         -8-
provisions—we conclude that his challenge is wholly lacking in merit.

Specifically, Mr. Milton contends that the allegedly conflicting burdens of proof

in §§ 2255(h)(1) and 2244(b)(3)(C) render these provisions unconstitutional. As

relevant here, § 2255(h) provides that

             [a] second or successive motion must be certified as provided in
             section 2244 by a panel of the appropriate court of appeals to
             contain – (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 evidence that no reasonable
             factfinder would have found the movant guilty of the offense.

28 U.S.C. § 2255(h)(1) (emphasis added). On the other hand, § 2244(b)(3)(C)

provides that a “court of appeals may authorize the filing of a second or

successive application only if it determines that the application makes a prima

facie showing that the application satisfies the requirements of this subsection.”

28 U.S.C. § 2244(b)(3)(C) (emphasis added).

      Mr. Milton’s argument has no merit because the showings required by

§§ 2255(h)(1) and 2244(b)(3)(C) are not contradictory. Rather, they are distinct

showings. And each plays a unique role in the authorization process. Before

proceeding with a second or successive § 2255 motion, § 2255(h) requires

authorization from the court of appeals pursuant to § 2244. See 28 U.S.C.

§ 2255(h). Further, under § 2244(b)(3)(C), a court of appeals can only authorize

a second or successive motion if a prima facie showing is made that one of the

two circumstances set forth in § 2255(h) is met. See In re Shines, 696 F.3d 1330,


                                         -9-
1332 (10th Cir. 2012) (“In order to file a second or successive § 2255 motion in

the district court, [a movant] must first obtain our authorization. See 28 U.S.C.

§ 2255(h); id. § 2244(b)(3). This court may authorize a claim only if [a movant]

makes a prima facie showing that the claim relies on [one of the two types of

claims described in § 2255(h)].”); United States v. Harper, 545 F.3d 1230, 1232

(10th Cir. 2008) (“In order to file a second or . . . successive § 2255 motion, a

petitioner must first move the court of appeals for an order authorizing the district

court to hear the motion. 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3). In turn,

this court may grant permission to file a second or successive motion only if the

applicant meets [the] criteria [in § 2255(h)].”). Because Mr. Milton’s challenge

to AEDPA’s authorization scheme rests on a misapprehension of that

scheme—that is, that the scheme contains unconstitutionally contradictory

provisions—his argument is unavailing. Despite his attempt to do so, Mr. Milton

has failed to raise a “serious constitutional question” of the kind left open in

Prost.




                                         -10-
                                              III

      We AFFIRM the district court’s dismissal of Mr. Milton’s 28 U.S.C.

§ 2241 petition for lack of jurisdiction. 5



                                         ENTERED FOR THE COURT


                                         Jerome A. Holmes
                                         Circuit Judge




      5
             For the reasons above (see supra note 4), we deny Mr. Milton’s
request for a preliminary injunction to prevent his transfer to another prison
facility as moot. Mr. Milton also sought appointment of counsel to represent him
in this matter; in light of our disposition, we also deny that motion to appoint
counsel as moot.

                                          -11-
