FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2017
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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.
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ORDER AND JUDGMENT*
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Before KELLY, McKAY, and MORITZ, Circuit Judges.
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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 This order and judgment is not binding precedent,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
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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
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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”
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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.
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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
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