Michael Jackson v. Warden, Usp-Leavenworth

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MICHAEL JACKSON,
Petitioner - Appellant,
v.
WARDEN, USP-LEAVENWORTH,
Respondent - Appellee.
No. 21-3011
(D.C. No. 5:20-CV-03292-JWL)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_______________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_______________________________________
Mr. Michael Jackson was convicted of unlawfully possessing a
firearm after a felony conviction. See 18 U.S.C. § 922(g)(1). For
sentencing, a 15-year minimum prison term would be mandatory if Mr.
Jackson had at least three prior convictions for violent felonies. 18 U.S.C.
§ 924(e)(1). A felony could be considered violent if it fell within a list of
* We conclude that oral argument would not materially help us to
decide the appeal, so we have decided the appeal based on the record and
the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our 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 if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
August 13, 2021
Christopher M. Wolpert
Clerk of Court
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particular crimes or qualified under the so-called “residual clause.”
18 U.S.C. § 924(e)(2)(B).
In Missouri, Mr. Jackson had six prior convictions for second-degree
burglary and one prior conviction for first-degree burglary. So the court
had to consider whether the burglary convictions involved violent felonies.
The court answered “yes” based on existing precedent (United States v.
Sykes, 844 F.3d 712, 716 (8th Cir. 2016)) 1 and applied the 15-year
minimum prison sentence.
After the sentencing, however, the applicable precedent changed. See
United States v. Naylor, 887 F.3d 397, 406–07 (8th Cir. 2018) (en banc).
Relying on this change in the law, Mr. Jackson argues that the sentencing
court shouldn’t have considered second-degree burglary a violent felony. If
he’s right, the sentencing court had no obligation to impose the 15-year
mandatory minimum.
Mr. Jackson thus sought habeas relief under 28 U.S.C. § 2241. The
federal district court denied habeas relief, reasoning that Mr. Jackson’s
sole remedy lay in a motion to vacate the sentence under 28 U.S.C. § 2255.
We affirm.
1 After Mr. Jackson was convicted of unlawfully possessing a firearm,
the Supreme Court vacated that precedent. See United States v. Sykes, 138
S. Ct. 1544 (2018).
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Mr. Jackson has previously filed a motion to vacate under § 2255,
arguing that “[h]e cannot file a second or successive Section 2255 petition
because he is not claiming newly discovered evidence or relying on an
intervening constitutional decision.” Appellant’s Opening Br. at 6; see
28 U.S.C. § 2255(h). He is instead relying on the change in precedent as a
basis to pursue habeas relief under 28 U.S.C § 2241. But he can pursue
habeas relief under § 2241 only if a remedy under § 2255 “is inadequate or
ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).
Section 2255 is not “inadequate or ineffective” simply because
contrary precedent existed when Mr. Jackson made his initial motion.
Abernathy v. Wandes, 713 F.3d 538, 547–48 (10th Cir. 2013). To the
contrary, § 2255 would be inadequate or ineffective only if Mr. Jackson
never had an opportunity to raise the issue in a challenge to the conviction
or sentence. Prost v. Anderson, 636 F.3d 578, 584–85 (10th Cir. 2011); see
also Cleaver v. Maye, 773 F.3d 230, 233 (10th Cir. 2014) (upholding the
denial of habeas relief because the petitioner could not show that he had
lacked the opportunity to present the issue in the § 2255 proceedings).
Mr. Jackson concedes that “Tenth Circuit precedent holds that
Section 2255 is not ‘inadequate or ineffective’ when an inmate would have
been allowed to file a challenge to his conviction or sentence, even if that
claim was bound to be rejected on the basis of on-point, binding circuit
precedent at the time, and even if that precedent is subsequently
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overturned as erroneous.” Appellant’s Opening Br. at 6–7 (emphasis in
original). Recognizing this precedent, Mr. Jackson seeks only an
opportunity to challenge it. But he recognizes, as we do, that one panel
cannot overrule another panel. United States v. White, 782 F.3d 1118,
1126–27 (10th Cir. 2015).
We thus apply our existing precedent, concluding that habeas relief
under § 2241 is unavailable because Mr. Jackson had an earlier opportunity
to seek a remedy under § 2255 for his challenge to the existence of three or
more convictions for violent felonies. Given this conclusion, we affirm the
denial of habeas relief.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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