FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MICHAEL DAVIS BRYANT,
Petitioner-Appellant,
No. 16-1500
v. (D.C. No. 1:16-CV-01952-LTB)
(D. Colo.)
MOSES STANCIL, Acting Warden,
FCI Florence,
Respondent-Appellee.
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ORDER AND JUDGMENT *
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Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Mr. Michael Davis Bryant is a federal prisoner who sought habeas
relief under 28 U.S.C. § 2241. The district court dismissed for lack of
statutory jurisdiction, reasoning that Mr. Bryant had failed to show that the
remedy under 28 U.S.C. § 2255 was inadequate or ineffective. Mr. Bryant
*
We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
appeals and seeks leave to proceed in forma pauperis. We affirm and grant
leave to proceed in forma pauperis.
The Unavailability of Relief Under § 2241
Mr. Bryant moved to vacate his sentence under 28 U.S.C. § 2255 in
the Eastern District of Washington, and the district court denied the
motion. Mr. Bryant then unsuccessfully asked the Ninth Circuit Court of
Appeals to allow the filing of a second or successive § 2255 motion.
Unable to file a second or successive § 2255 motion, Mr. Bryant
initiated the present case, filing a habeas petition under 28 U.S.C. § 2241
in the District of Colorado. The district court dismissed for lack of
statutory jurisdiction, concluding that Mr. Bryant had failed to demonstrate
that the remedy in § 2255 was inadequate or ineffective.
Mr. Bryant argues that his sentence should not have been enhanced
under the Armed Career Criminal Act. The sole issue is whether this
argument could be entertained through a habeas action under 28 U.S.C.
§ 2241. The district court answered “no,” reasoning that the sole remedy in
this case was a motion to vacate the sentence under 28 U.S.C. § 2255. We
agree.
The typical remedy for a challenge to the validity of a federal
sentence is vacatur under 28 U.S.C. § 2255. Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996). If this statutory remedy is otherwise available,
it would authorize vacatur of the sentence if it had been unconstitutional,
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unlawful, or imposed without authority. 28 U.S.C. § 2255(a). But vacatur
of the sentence entails restrictions on timeliness and the filing of second or
successive motions. 28 U.S.C. § 2255(e)-(f), (h).
An alternative remedy is sometimes available through a habeas
petition under 28 U.S.C. § 2241. But § 2241 cannot ordinarily be used to
address the validity of a sentence because of the availability of a remedy
under § 2255. Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (per
curiam). An exception exists, allowing a prisoner to challenge the validity
of a sentence under § 2241 when the remedy in § 2255 is “inadequate or
ineffective to test the legality of his detention.” Prost v. Anderson, 636
F.3d 578, 584 (10th Cir. 2011) (quoting 28 U.S.C. § 2255(e)).
To determine whether the remedy in § 2255 is “inadequate or
ineffective,” the court focuses on “process” rather than “substance.” Id.
The test is whether the petitioner had an opportunity to present and argue
his claim under § 2255. Id. If the claim could have been presented in the
initial § 2255 motion, the remedy in § 2255 is neither inadequate nor
ineffective. Id.
Mr. Bryant makes three arguments:
1. He cannot file a second or successive § 2255 motion.
2. The Ninth Circuit Court of Appeals erred.
3. He did not realize the need to make certain claims until the
Ninth Circuit issued its decision.
We reject each argument.
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First, Mr. Bryant argues that the remedy under § 2255 was
inadequate or ineffective because the Ninth Circuit would not permit him
to file a second or successive § 2255 motion. But his inability to file a
second § 2255 petition “does not establish that the remedy in § 2255 is
inadequate.” Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).
Second, he argues that the Ninth Circuit erred on the merits. But,
even if true, a § 2255 remedy is not inadequate or ineffective “simply
because a court errs in rejecting a good argument.” Prost v. Anderson, 636
F.3d 578, 590 (10th Cir. 2011).
Finally, Mr. Bryant argues that he did not realize the need to present
certain arguments until he saw the Ninth Circuit’s opinion. But even if Mr.
Bryant had not realized the need to make an argument, he could have made
it. Thus, the remedy in § 2255 was not inadequate or ineffective. Id. at
589.
* * *
The district court correctly concluded that Mr. Bryant could not
obtain relief under § 2241. We therefore affirm.
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Leave to Proceed in Forma Pauperis
Mr. Bryant also seeks leave to proceed in forma pauperis. The Court
grants this request.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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