Patrick Marlowe v. Warden, FCI Hazelton

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 20-6719

PATRICK MARLOWE,

Petitioner - Appellant,

v.

WARDEN, FCI HAZELTON,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. John Preston Bailey, District Judge. (5:17-cv-0011-JPB)

Argued: March 10, 2021 Decided: July 27, 2021

Before NIEMEYER, MOTZ, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge
Niemeyer and Judge Motz joined.

ARGUED: Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for
Appellant. Jason Lee, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: William J. Powell, United States Attorney, Martinsburg,
West Virginia, Tara N. Tighe, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
RUSHING, Circuit Judge:

Patrick Marlowe appeals the district court’s dismissal of his 28 U.S.C. § 2241

habeas petition. Section 2241 is not available to Marlowe, a federal prisoner, unless a 28

U.S.C. § 2255 motion would be “inadequate or ineffective” to test the legality of his

detention. 28 U.S.C. § 2255(e). Relevant here, under this Court’s precedent a Section

2255 motion can prove inadequate or ineffective only if, when Marlowe was convicted, the

settled law of the Supreme Court or the circuit in which he was convicted established the

legality of his conviction. Our cases and an examination of the habeas remedy demonstrate

that, to satisfy this requirement, a prisoner must show that binding precedent previously

foreclosed the argument he later presses to collaterally attack his conviction. Because

Marlowe cannot so demonstrate, the district court lacked jurisdiction to entertain his

petition.

I.

A.

Marlowe supervised corrections officers working the second shift at the county jail

in Wilson County, Tennessee. United States v. Conatser, 514 F.3d 508, 514 (6th Cir.

2008). Marlowe, in his own words, ran “a different kind of shift.” Id. (internal quotation

marks omitted). He and his officers “would strike and kick inmates who were loud,

obnoxious, or uncooperative and would conceal their unjustified use of force through the

denial of medical care and the falsification of incident reports.” Id.

2
 This appeal concerns Marlowe’s complicity in the death of detainee Walter Kuntz.

We briefly summarize the relevant facts as recounted by the Sixth Circuit when it affirmed

Marlowe’s resulting prison sentence. Id. at 516–518.

On January 13, 2003, authorities booked Kuntz into Marlowe’s jail after he left the

scene of a minor automobile accident. His blood alcohol level registered approximately

.26. Kuntz soon began causing a ruckus in his cell. When Kuntz ignored commands to

stop, Marlowe “punched Kuntz in the left side of his head, threw him toward the wall, and

kicked, punched, and kneed Kuntz in the rib area.” Id. at 516. Kuntz calmed down briefly

before again banging on his cell door. Marlowe reentered Kuntz’s cell and “struck Kuntz

in the left temple area, knocking him down, and then punched and kicked Kuntz some

more.” Id. Another officer sprayed Kuntz with a chemical agent as the officers left the

cell.

Kuntz was quiet for a time before again yelling and kicking the cell door. Marlowe

instructed one of his subordinates to “take care of the situation.” Id. (internal quotation

marks omitted). The subordinate returned to Kuntz’s cell with other officers. As Kuntz

backed away, an officer “pushed him onto the bench next to the wall,” with the right side

of Kuntz’s head facing the officer and the left side four or five inches from the wall. Id.

The officer delivered “three or four ‘full power’ punches to the right side of Kuntz’s head.

Each time, the left side of Kuntz’s head bounced off the wall and made a ‘cracking sound.’

The officers left Kuntz holding his head and moaning. [The officer] told Marlowe he had

‘taken care of it.’” Id. at 516–517.

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 Over the following hours, the officers observed Kuntz lying unconscious in his own

vomit and learned that he had undergone brain surgery a year or two earlier. Though Kuntz

was unresponsive, Marlowe did not request medical attention. Instead, Marlowe and a

subordinate “tried to rouse him by shaking him, patting him, and pouring a bucket of ice

water over him.” Id. at 517. Kuntz did not respond. The officers used ammonia smelling

salts to no avail, noticing instead “that Kuntz would stop breathing until the salts were

taken away.” Id. Yet medical care went unsolicited. Another check on Kuntz found him

lying down with his eyes open and unresponsive “to being shaken or having a light shone

in his eyes.” Id. A subordinate alerted Marlowe; he took no action.

Approximately six hours after Kuntz’s last beating, the officers called an

ambulance. The responding EMTs determined that Kuntz “was a level three on the level

of consciousness scale—the same level as a deceased person.” Id. The EMTs believed

they were responding to a case of possible alcohol poisoning, and no one disabused them

of that notion. Rather than being airlifted to a trauma center for a possible head injury,

Kuntz went to a local medical center. Only following a brain scan was Kuntz flown to a

trauma center. His condition was beyond repair:

A neurosurgeon evaluated Kuntz, who was on a ventilator and had no brain
stem reflexes. The doctor concluded that Kuntz had a very large subdural
hematoma that had caused irreversible brain damage. He added that Kuntz’s
low body temperature had exacerbated his condition because it interfered
with normal clotting. Kuntz died when he was removed from the ventilator
two days later.

Several doctors testified at trial that Kuntz’s head injuries were consistent
with blunt force trauma, and that such injuries are generally treatable if
medical attention is sought in the first hours after a brain injury. It was also
explained that within an hour of injury a person with a subdural hematoma

4
 would start to experience a progression of symptoms such as dizziness,
headache, nausea, vomiting, sleepiness, lethargy, and eventually
unresponsiveness.

Id. at 517–518 (footnote omitted).

B.

A federal grand jury indicted Marlowe and other officers for depriving detainees

and prisoners of their rights secured by the Constitution or laws of the United States in

violation of 18 U.S.C. § 242 and conspiring to do so in violation of 18 U.S.C. § 241.

Counts Two and Three charged Marlowe in Kuntz’s death. Count Two encompassed the

assault, while Count Three faulted Marlowe for depriving Kuntz of necessary medical care.

Both arose under 18 U.S.C. § 242, which authorizes escalating penalties depending on the

resulting harm: “if bodily injury results from the acts committed in violation of” the statute,

the maximum sentence is 10 years’ imprisonment, but “if death results from the acts,” the

defendant may be sentenced to life imprisonment. 1 Counts Two and Three each alleged

that Marlowe’s actions resulted in both Kuntz’s bodily injury and his death.

1
In full, 18 U.S.C. § 242 provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom,
willfully subjects any person in any State, Territory, Commonwealth,
Possession, or District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United
States, or to different punishments, pains, or penalties, on account of such
person being an alien, or by reason of his color, or race, than are prescribed
for the punishment of citizens, shall be fined under this title or imprisoned
not more than one year, or both; and if bodily injury results from the acts
committed in violation of this section or if such acts include the use,
attempted use, or threatened use of a dangerous weapon, explosives, or fire,
shall be fined under this title or imprisoned not more than ten years, or both;

5
 While some of his codefendants pleaded guilty (and testified against him), Marlowe

opted for trial. At the close of evidence, the district court instructed the jury on the “death

results” element in Counts Two and Three:

For Counts Two and Three, you also must decide whether the government
has proved beyond a reasonable doubt that Walter Kuntz’s death resulted
from the conduct of Defendant Marlowe.

The government need only prove that bodily injury or death was a natural
and foreseeable result of the defendant’s conduct. The government does not
need to prove that a defendant intended to cause bodily injury or death or that
a defendant’s acts were the direct, immediate or sole cause of bodily injury
or death.

J.A. 46–47. The jury convicted Marlowe of seven of the eight counts charged. On Count

Two, the jury found Marlowe guilty and that bodily injury—but not death—resulted from

the assault on Kuntz. On Count Three, the jury found Marlowe guilty and that both bodily

injury and death resulted from withholding medical care. The court sentenced Marlowe to

life imprisonment on Count Three and concurrent sentences of 10 years on the other counts.

Without challenging his convictions, Marlowe appealed only the life sentence, which the

Sixth Circuit affirmed. Conatser, 514 F.3d at 528.

In 2009, Marlowe moved to vacate, set aside, or correct his conviction and sentence

under 28 U.S.C. § 2255. He claimed that his trial counsel rendered constitutionally

ineffective representation by failing to correctly calculate and advise him of his sentencing

and if death results from the acts committed in violation of this section or if
such acts include kidnapping or an attempt to kidnap, aggravated sexual
abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill,
shall be fined under this title, or imprisoned for any term of years or for life,
or both, or may be sentenced to death.

6
exposure and to recommend that he accept the Government’s plea offer. The district court

denied the motion and declined to issue a certificate of appealability, as did the Sixth

Circuit.

C.

In July 2017, Marlowe filed the 28 U.S.C. § 2241 habeas petition underlying this

appeal. 2 In support, Marlowe invokes the Supreme Court’s 2014 decision in Burrage v.

United States, 571 U.S. 204 (2014). There, the Supreme Court interpreted a statute

imposing a 20-year mandatory minimum sentence for drug offenses where “death or

serious bodily injury results from the use of [the illegal] substance.” 21 U.S.C.

§ 841(b)(1)(C); see also Burrage, 571 U.S. at 208–210. The Court held that the “death

results” element requires a showing of but-for causation. Burrage, 571 U.S. at 218–219.

The Court embraced the traditional understanding reflected in the Model Penal Code that

“when a crime is defined in terms of conduct causing a particular result,” it at a minimum

requires that the conduct be “an antecedent but for which the result in question would not

have occurred.” Id. at 211 (quoting ALI, Model Penal Code § 2.03(1)(a) & Explanatory

Note (1985)).

Marlowe contends that the jury instructions in his case ran afoul of Burrage because

the jury was not asked to decide whether Kuntz would have lived but for Marlowe’s

2
Though Marlowe was convicted in the Middle District of Tennessee, he is serving
his sentence at Federal Correctional Institution, Hazelton in West Virginia. Because
Section 2241 habeas petitions “must be filed in the jurisdiction where the federal petitioner
is detained,” Marlowe’s appeal is properly before this Court. Hahn v. Moseley, 931 F.3d
295, 300 (4th Cir. 2019); see also 28 U.S.C. § 2241(a).
7
conduct but rather was instructed that Marlowe’s acts need not have been “the direct . . .

cause” of Kuntz’s death. The Government moved to dismiss the petition for lack of

jurisdiction, arguing that Marlowe was not entitled to invoke Section 2241 because he had

not shown, pursuant to the so-called “savings clause” of 28 U.S.C. § 2255(e), that a Section

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

U.S.C. § 2255(e); see also In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc) (federal

prisoners “are required to bring collateral attacks challenging the validity of their judgment

and sentence by filing a motion to vacate sentence pursuant to [Section] 2255”).

The district court granted the motion to dismiss. Marlowe v. Warden, FCI Hazelton,

No. 5:17-CV-111, 2020 WL 2043807 (N.D. W. Va. Apr. 28, 2020). The court recognized

that, when evaluating claims under the savings clause, it must apply the procedural law of

this Circuit and the substantive law of the circuit where the petitioner was convicted.

Looking to the law of the Sixth Circuit, the district court observed that the circuit has

applied Burrage retroactively on collateral review. Id. at *3–4. The court also observed

that the Sixth Circuit’s savings-clause jurisprudence requires a prisoner to prove he is

“actually innocent,” meaning that applying the retroactive rule “make[s] it more likely than

not that no reasonable juror would have convicted him.” Id. at *5 (citing Harrington v.

Ormond, 900 F.3d 246, 249 (6th Cir. 2018)). Thinking it would be incongruous for

Marlowe to escape this requirement by virtue of being confined in the Fourth Circuit, the

district court determined that Marlowe “should be required to show the actual innocence

standard of the Sixth Circuit.” Id. Marlowe failed to make that showing, the district court

reasoned, because (1) even extending Burrage to 18 U.S.C. § 242, the jury instructions

8
were correct and (2) the evidence and verdict demonstrated that Marlowe’s withholding of

medical care was the sole proximate cause of Kuntz’s death. Id. at *6–7.

Marlowe timely appealed. He contends that after Burrage the causation jury

instruction in his case was fatally flawed and the district court further erred by requiring

him to satisfy the Sixth Circuit’s actual-innocence standard. The Government urges us to

affirm the district court’s reasoning but also emphasizes that no binding precedent from the

Sixth Circuit or the Supreme Court foreclosed Marlowe—at trial, on direct appeal, or in

his initial Section 2255 motion—from making the argument he now attempts to advance.

II.

Marlowe bears the burden to establish the inadequacy or ineffectiveness of 28

U.S.C. § 2255 so that he may proceed with his Section 2241 habeas petition. Farkas v.

Butner, 972 F.3d 548, 553 (4th Cir. 2020). Whether he has done so is a jurisdictional

question we review de novo. Ham v. Breckon, 994 F.3d 682, 688 (4th Cir. 2021).

A.

Federal prisoners generally must use the remedy-by-motion mechanism provided in

28 U.S.C. § 2255 to challenge their convictions or sentences. Farkas, 972 F.3d at 554; In

re Vial, 115 F.3d at 1194. Section 2255 “afford[s] every federal prisoner the opportunity

to launch at least one collateral attack to any aspect of his conviction or sentence.” Prost

v. Anderson, 636 F.3d 578, 583 (10th Cir. 2011) (Gorsuch, J.). But after a prisoner, like

Marlowe, has filed one unsuccessful Section 2255 motion, “he may not file another except

under very limited circumstances.” Lester v. Flournoy, 909 F.3d 708, 710 (4th Cir. 2018).

Specifically, before filing a “second or successive motion,” the prisoner must receive

9
permission from the court of appeals by making a prima facie showing that either

(1) “newly discovered evidence” proves he was not guilty of his offense or (2) a

“previously unavailable” “new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court,” entitles him to relief. 28 U.S.C. § 2255(h); see

also id. § 2244(b). These restrictions do not permit a second petition for a new statutory

construction, like Marlowe advances here. See Lester, 909 F.3d at 711.

Congress has provided one exception to this general rule. Section 2255(e)’s savings

clause permits a prisoner to file a traditional Section 2241 habeas petition if it “appears that

the [Section 2255] remedy by motion is inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e). The Section 2255 remedy “is not rendered inadequate or

ineffective merely because an individual has been unable to obtain relief under that

provision, or because an individual is procedurally barred from filing a [Section] 2255

motion.” In re Vial, 115 F.3d at 1194 n.5 (internal citations omitted). Nevertheless, our

Court has held that, in “limited circumstances,” a prisoner otherwise unable to file a second

or successive Section 2255 petition may invoke the savings clause to seek relief under

Section 2241. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). “[T]o prevent the exception

from swallowing the rule” and “‘effectively nullify[ing]’” Section 2255’s limitations, “we

have interpreted the ‘savings clause’ narrowly.” Farkas, 972 F.3d at 556 (quoting In re

Jones, 226 F.3d at 333).

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 Our Circuit has crafted a three-part test for determining whether a Section 2255

motion challenging a prisoner’s conviction would prove “inadequate or ineffective.” 3 That

test provides that Section 2255 is inadequate and ineffective to test the legality of a

conviction when:

(1) at the time of conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to the prisoner’s
direct appeal and first [Section] 2255 motion, the substantive law changed
such that the conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of
[Section] 2255 because the new rule is not one of constitutional law.

In re Jones, 226 F.3d at 333–334. To resolve Marlowe’s appeal, we need undertake only

the first inquiry. Before doing so, however, we must define its substance.

B.

We have not previously had occasion to squarely address the meaning of our

requirement that the “settled law of this circuit or the Supreme Court established the

legality of the [prisoner’s] conviction.” Id. After reviewing Jones, cases applying its

standard, and the statutory scheme governing habeas proceedings, we conclude that the

first step of the Jones test requires a prisoner invoking Section 2255(e)’s savings clause to

demonstrate that, at the time of his conviction, binding precedent from the Supreme Court

or the circuit of conviction foreclosed the argument he contends entitles him to habeas

relief.

Our Court has created a similar pathway for relief under the savings clause for
3

prisoners who challenge the legality of their sentences. See United States v. Wheeler, 886
F.3d 415 (4th Cir. 2018). Jones controls here because Marlowe disputes the validity of his
conviction, not “the length of a criminal sentence for an otherwise valid conviction.”
Farkas, 972 F.3d at 559–560.
11
 1.

We begin with Jones. Byron Jones had been convicted of violating 18 U.S.C.

§ 924(c)(1). At the time of his conviction, our cases allowed the Government to establish

“use” of a firearm under Section 924(c)(1) “by proving that ‘the firearm was present for

protection and to facilitate the likelihood of success [of a drug trafficking offense], whether

or not it was actually used.’” In re Jones, 226 F.3d at 330 (alterations omitted) (quoting

United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991)). Roughly two years later, the

Supreme Court in Bailey v. United States, 516 U.S. 137 (1995), held that the Government

“must prove active employment of a firearm in order to convict under the ‘use’ prong of

[Section] 924(c)(1).” In re Jones, 226 F.3d at 330. As we explained, “[t]his holding

overruled the prior law of this circuit,” under which Jones had been convicted. Id.

Evaluating the meaning of the savings clause in this circumstance, we examined

similar decisions from other circuits. In each case, “the court . . . noted that the prisoner’s

first [Section] 2255 motion was filed prior to the decision in Bailey, at a time when it would

have been futile to challenge the then-prevailing interpretation of the ‘use’ prong of

[Section] 924(c)(1)” in those circuits. Id. at 333 (emphasis added) (citing In re Davenport,

147 F.3d 605, 610–612 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361, 376–380

(2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 251–252 (3d Cir. 1997)). 4 This Court

4
In a footnote, the Court also cited Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999),
overruled by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th
Cir. 2017). That decision did not involve a Bailey claim but relied on the reasoning of
those cases to fashion a savings-clause test requiring, among other things, that “circuit law
squarely foreclosed” the claim “at the time it otherwise should have been raised in the
petitioner’s trial, appeal, or first [Section] 2255 motion.” Wofford, 177 F.3d at 1244.
12
“agree[d] with the rationale and holdings of th[o]se courts” and accordingly established the

three-part test we use today. Id. Applying the first requirement of that test, the Jones Court

explained that “[u]nder the settled law of this circuit at the time of Jones’[s] conviction,”

the discovery of four firearms in a locked closet was sufficient to support a conclusion that

Jones “used” the guns for purposes of Section 924(c)(1). Id. at 334. In other words, before

Bailey, circuit precedent foreclosed any argument by Jones that Section 924(c)(1) required

active employment of a firearm.

This context informs our understanding of Jones’s requirement that “settled law” at

the time of the prisoner’s conviction “established the legality of the conviction.” Id. at

333–334. The law was settled and adverse to the prisoners in Jones and the cases on which

it relied because, at the time of their convictions, binding precedent foreclosed the statutory

interpretation they later claimed undercut the legality of their convictions. In view of

circuit precedent definitively interpreting the “use” prong of Section 924(c)(1) at the time

of his conviction, it “would have been futile” for Jones to advance a contrary interpretation

of the statute. Id. at 333. Jones is thus premised on the understanding that binding

precedent previously prevented the prisoner from asserting the argument he later claims a

change in the law has made available to him.

2.

Subsequent cases reinforce this interpretation. For example, in United States v.

Wheeler, 886 F.3d 415 (4th Cir. 2018), this Court relied on Jones to fashion a savings-

clause test for challenges to sentences. Convicted of various drug and firearm offenses,

Wheeler faced an enhanced statutory mandatory minimum of 10 years’ imprisonment

13
based on a prior North Carolina felony drug offense. Wheeler, 886 F.3d at 419. When

Wheeler was sentenced, our precedent held that “to determine whether a conviction is for

a crime punishable by a prison term exceeding one year under North Carolina law, we

consider the maximum aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history.” Id. at 420 (alterations omitted)

(quoting United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005)). Though Wheeler

himself could have received only 6 to 8 months’ imprisonment for his North Carolina

conviction, the offense carried a maximum aggravated sentence of 15 months. Id. So “any

challenge” arguing that Wheeler’s North Carolina conviction was not a felony drug offense

“would have failed.” Id. (alterations and internal quotation marks omitted). We later

overruled Harp, holding instead that “a sentencing court may only consider the maximum

possible sentence that the particular defendant could have received.” Id. (quoting United

States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013)).

The Wheeler Court adapted Jones’s first requirement to focus on a prisoner’s

sentence rather than conviction, requiring that “at the time of sentencing, settled law of this

circuit or the Supreme Court established the legality of the sentence.” Id. at 429. And we

found Wheeler satisfied this requirement. It was “undisputed that at the time [Wheeler]

was sentenced in February 2008, his sentence was legal pursuant to Harp.” Id. Just as in

Jones, published circuit precedent at the time foreclosed the argument Wheeler made in his

subsequent habeas proceeding.

So too in other cases. In Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018), we held

Section 2255 inadequate and ineffective under the Wheeler test, finding that when Lester

14
was sentenced, “settled precedent established that his past conviction for walkaway escape

was a ‘crime of violence’” under the Guidelines’ career-offender provision. 909 F.3d at

712. In Braswell v. Smith, 952 F.3d 441 (4th Cir. 2020), we found that, just as in Wheeler,

settled law established the validity of the prisoner’s sentence because the felony drug

offense enhancement was controlled by “[t]he then-prevailing decision of United States v.

Harp.” 952 F.3d at 447. In Jones v. Zych, 812 Fed. App. 115 (4th Cir. 2020), the first

Wheeler requirement was satisfied because Supreme Court precedent permitting judicial

factfinding as the basis for a statutorily increased mandatory minimum was “the law of the

land at the time of Jones’s sentencing.” 812 Fed. App. at 120–121. And in Hahn v.

Moseley, 931 F.3d 295 (4th Cir. 2019), we found Jones’s “settled law” requirement

fulfilled where, at the time of Hahn’s convictions, Tenth Circuit law held—contrary to later

developments—that multiple charges under Section 924(c) based on a single instance of

firearm possession were permissible if they did not contravene the Double Jeopardy

Clause. 931 F.3d at 301.

Our consistent treatment of Jones’s first requirement and its Wheeler analog evinces

a focus on whether settled law at the time of the original criminal proceedings foreclosed

the argument the prisoner later advances to challenge his conviction or sentence such that

raising it earlier was or would have been futile.

3.

This reading of Jones’s “settled law” requirement is also consonant with Section

2255 and the nature of the habeas remedy. Generally speaking, habeas proceedings are not

the time to raise arguments a prisoner could have made, but did not, in the proceedings

15
culminating in his conviction. Principles of procedural default sharply limit a prisoner’s

ability to raise on collateral review claims not raised in his initial criminal proceeding or

on direct appeal. See Bousley v. United States, 523 U.S. 614, 621–624 (1998); United

States v. Frady, 456 U.S. 152, 167–168 (1982); see also United States v. Harris, 991 F.3d

552, 558 (4th Cir. 2021). And the gatekeeping provisions of Section 2255(h) limit second

or successive Section 2255 motions to “newly discovered evidence” and “new rule[s] of

constitutional law” that were “previously unavailable.” 28 U.S.C. § 2255(h); see also

Lester, 909 F.3d at 710–711. The exclusion of previously available claims from Section

2255’s reach compels a similar approach to the savings clause. See Farkas, 972 F.3d at

556 (explaining that we have interpreted the savings clause “narrowly” in an effort to avoid

“effectively nullify[ing] [Section] 2255’s specific limitations” (internal quotation marks

omitted)).

The text of the savings clause points in the same direction. As we have observed,

“the text juxtapos[es] the terms ‘inadequate or ineffective’ with the phrase ‘to test the

legality of [a prisoner’s] detention.’” Id. at 555 (internal quotation marks omitted). At a

minimum, Section 2255 is not inadequate or ineffective to test an argument on an unsettled

point of law that the prisoner could have asserted in his original criminal proceeding, on

direct appeal, or in his initial Section 2255 motion. Cf. Wheeler, 886 F.3d at 429 (requiring

that retroactive change in law occur after direct appeal and initial Section 2255 motion to

“honor[] the saving clause’s requirement that the [Section] 2255 motion be inadequate or

ineffective”). Section 2255 would not condone a prisoner’s failure to press his argument

earlier, and “[i]t is beyond question that [Section] 2255 is not inadequate or ineffective

16
merely because an individual is unable to obtain relief under that provision.” In re Jones,

226 F.3d at 333; see also Farkas, 972 F.3d at 555–556. The savings clause “provide[s]

only the tightest alleyway to relief.” Lester, 909 F.3d at 716. And in our Circuit, traversing

that alleyway begins with showing that, at the time of the prisoner’s original criminal

proceeding, binding precedent foreclosed the argument he later seeks to advance in his

Section 2241 petition.

C.

With the proper inquiry in mind, we now undertake it in Marlowe’s case. When

evaluating claims under the savings clause, “we look to the substantive law of the circuit

where a defendant was convicted.” Hahn, 931 F.3d at 301. Because Marlowe was

convicted in the Middle District of Tennessee, we assess the “settled law” of the Sixth

Circuit and Supreme Court. See id. at 301–302 (applying Jones and evaluating whether

settled Tenth Circuit law established the legality of the conviction).

In his Section 2241 petition, Marlowe contends that the law in the Sixth Circuit at

the time of his January 2006 conviction did not require a showing of but-for causation to

support a conviction under the “death results” enhancement of 18 U.S.C. § 242, citing

United States v. Martinez, 588 F.3d 301 (6th Cir. 2009). Though Martinez issued after his

conviction and direct appeal—and does not involve a conviction under 18 U.S.C. § 242—

Marlowe nonetheless claims that “the Court in Martinez was clear that since 1994 it has

interpreted a similar statutory provision as only requiring a showing of legal cause.” J.A.

16 n.2. This references Martinez’s discussion of United States v. Wiegand, No. 93-1735,

1994 WL 714347 (6th Cir. Dec. 22, 1994), an unpublished decision that addressed the

17
causation necessary to show that “bodily injury results” from a violation of 42 U.S.C.

§ 3631. Citing approvingly to a Fifth Circuit decision construing 18 U.S.C. § 242, the

Wiegand court upheld the enhanced punishment under 42 U.S.C. § 3631 because the bodily

injury that occurred was the natural and foreseeable result of the defendant’s statutory

violation. Wiegand, 1994 WL 714347, at *2–3.

These cases cannot carry Marlowe’s burden to show that binding precedent at the

time of his conviction foreclosed an argument that the “death results” enhancement of 18

U.S.C. § 242 requires but-for causation. Most fundamentally, Martinez specifically says—

years after Marlowe’s conviction—that the Sixth Circuit “ha[s] not interpreted the ‘results

in death’ language of [Section] 242.” 588 F.3d at 318. The law concerning 18 U.S.C.

§ 242’s causation standard could hardly be “settled” if the Sixth Circuit has never

interpreted it.

Moreover, in addition to interpreting a different statute, Wiegand is an unpublished

opinion. At the time of Marlowe’s trial (as now) it was “well-established law” in the Sixth

Circuit “that unpublished cases are not binding precedent.” Bell v. Johnson, 308 F.3d 594,

611 (6th Cir. 2002). A nonprecedential decision interpreting a different statute cannot

establish “settled law.” Cf. Ham, 994 F.3d at 693 (rejecting the argument that an

“unpublished, non-precedential decision” could “demarcate a change in settled law”).

Marlowe could have raised his current objection to the causation jury instruction at

trial. He has not shown that doing so “would have been futile” under binding Sixth Circuit

precedent. In re Jones, 226 F.3d at 333. He therefore has not satisfied the first requirement

of the Jones test for invoking the savings clause of Section 2255(e).

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 III.

The traditional Section 2241 habeas remedy is available to a federal prisoner only

if a Section 2255 motion is “inadequate or ineffective to test the legality of his detention.”

28 U.S.C. § 2255(e). Under this Court’s precedent, a Section 2255 motion can prove

inadequate or ineffective only if, among other things, at the time of his conviction the

settled law of the Supreme Court or the circuit in which the prisoner was convicted

established the legality of his conviction. To satisfy this requirement, a prisoner must show

that binding precedent foreclosed the argument he later presses to collaterally attack his

conviction. Because Marlowe cannot satisfy this requirement to access Section 2255’s

savings clause, the district court lacked jurisdiction to entertain his Section 2241 habeas

petition. The judgment of the district court dismissing Marlowe’s petition is

AFFIRMED.

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