UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MANUEL GARCIA, Petitioner - Appellant,

v. STANCIL, Respondent - Appellee. No. 19-1286 (D.C. No. 1:19-CV -00868-LTB-GPG) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and EID , Circuit Judges.

________________ _________________ Manuel Garcia, a federal prisoner appearin g pro se, appeals the district court’s dismissal of his Application for a Writ of Habeas Corpus Purs uant to 28 U.S.C. § 2241. The court determined he had not shown that the remedy 28 U.S.C. § 2255 provides was “inadequate or ineffective to test the legality of his detention,” § 2255(e). Exercising jurisdiction u nder 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2020 Christopher M. Wolpert Clerk of Court2 I. Background In 1994, a jury convicted Garcia in th e United States District Court for the District of New Jersey for committing murd er for hire in violation of 18 U.S.C. § 1958, and he was sentenced to life imprisonment. See United States v. Garcia , 204 F. Supp. 2d 790, 792 (D.N.J. 2002) (rec ounting case history). His conviction and sentence were affirmed on direct appeal. See id. In 1998, the district court denied his initial § 2255 motion, and the Third Circ uit declined to issu e him a certificate of appealability. See id. at 792. In 2002, Garcia m oved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 591 to the United States Sentencing Guidelines, which became eff ective in 2000. The district court denied that motion because Amendment 591 was not retroactiv ely applicable and in any event the amendment would not change Garcia’s sentence. Garcia , 204 F. Supp. 2d at 794-95. The Third Circuit affirmed without opinion. United States v. Garcia , 80 F. App’x 289 (3d Cir. 2003). In 2019, while incarcerated at a Colorado prison, Garc ia filed a § 2241 habeas application in the United Stat es District Court for the Dist rict of Colorado. Based on intervening changes in statutory interpreta tion, he argued the sentencing court erred in looking to Sentencing Guideline § 2A1. 5, Conspiracy or Solicitation to Commit Murder, instead of the guideline specific to his § 1958(a) murder-for-hire conviction, § 2E1.4, as set forth in Appendix A to the Guidelines. As explai ned in the district court’s denial of Garcia’s § 3582(c)(2) motion, the court had looked initially to § 2E1.4, but an application note there led it to § 2A1.5, and a cross-reference in3 § 2A1.5 led the court to the first-degree mu rder guideline, § 2A1.1, which directs a life sentence for a premeditat ed killing where the death penalty is not imposed. See
Garcia , 204 F. Supp. 2d at 794-95. The court declined to reduce Garcia’s sentence “because loss of life resulted from [his] conspiracy to commit murder, all as alleged in the indictment and as f ound by the jury’s verdict.” Id. at 795. In his § 2241 application, Garcia acknowledged his claim relied only on intervening changes in statutory interpre tation (including Amendment 591, the First Step Act of 2018, and various Supreme Court, Third Circuit, and other federal cases). Garcia also acknowledged he could not meet the requirements for a second or successive § 2255 motion because his claims did not rely on “newly discovered evidence” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was prev iously unavailable,” § 2255(h). He thus asserted he should be allowe d to seek § 2241 relief base d on the “savings clause” of § 2255(e). Under the savings clause, “a federal prisoner may resort to § 2241 to contest his conviction if but only if the § 2255 remedial m echanism is ‘inadequate or ineffective to test the lega lity of his detention.’” Prost v. Anderson , 636 F.3d 578, 580 (10th Cir. 2011) (quoting § 2255(e)). 1

1 In full, § 2255(e) provides: An application for a writ of habeas co rpus in behalf of a prisoner who is authorized to apply for relief by motion pu rsuant to this section, shall not be entertained if it appears that the app licant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him4 A magistrate judge ordered Garcia to show cause why the remedy § 2255 provides was “inadequate or ineffective to test the legality of his detention,” § 2255(e). After Garcia re sponded, the magistrate judge issued a recommendation that the court dismiss the § 2241 application because Garc ia did not meet his burden to show the savings clause applied. Ga rcia did not file any objections to the recommendation, and the district court adopt ed it, dismissing the application without prejudice. Garcia appeals. 2
II. Discussion We review de novo a dist rict court’s dismissal of a § 2241 application based on a failure to show § 2255(e)’s savings clause applies. See Hale v. Fox , 829 F.3d 1162, 1170 (10th Cir. 2016). Garcia has the burden to show he satisfies § 2255(e). See id. Because Garcia represents himself, we afford his fi lings a liberal construction

relief, unless it also appears that th e remedy by motion is inadequate or ineffective to test the le gality of his detention.

2 We ordered Garcia to show cause why, under our “firm waiver rule,” he had not waived his right to appellate review by failing to file time ly objections to the magistrate judge’s findings and recommendation. See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.”); Morales-Fernandez v. INS , 418 F.3d 1116, 1119 (10th Cir. 2005) (explaining firm waiver rule and noting exceptions when (1) a district court does not inform a pro se litigant of th e deadline for filing objections “and the consequences of failing to object” or (2) “t he interests of jus tice require review” (internal quotation marks omitted)). Ha ving reviewed Garcia’s response to the show-cause order, which includes his objecti ons to the recommendation, we conclude that although he received the required warn ing, an intervening prison lockdown may have prevented him from timely filing objecti ons or seeking an extension of time to do so. We therefore will consider his objec tions as part of our merits analysis.5 but do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 92 7 n.1 (10th Cir. 2008). Garcia argues that based on statutor y interpretations a nd newly announced substantive law that post-date the resoluti on of his initial § 2255 motion, it is now clear that the sentencing court should have applied only the Guide line specific to his § 1958 conviction (§ 2E1.4) and not followe d the path it took to the Guideline for first-degree murder (§ 2A1.1). Because the Third Circuit would permit him to use § 2241 in these circumstances, he asks us to apply the Th ird Circuit’s savings-clause test. The Third Circuit’s te st permits a federal prisoner to proceed under § 2241 if he has not had an “earlier opportunity to cha llenge his conviction fo r a crime that an intervening change in subs tantive law may negate.” In re Dorsainvil , 119 F.3d 245, 251 (3d Cir. 1997). We recognize, as did the magistrate judge, that nine other circuit courts apply the same test as the Third Circuit. See, e.g. , Bruce v. Warden Lewisburg
USP , 868 F.3d 170, 179-80 (3d Cir. 2017) (collecting circ uit cases representing the majority and minority views). But our test , along with that of the Eleventh Circuit, 3
differs.
In Prost , we held that “[t]he relevant metric or meas ure” of § 2255’s adequacy or effectiveness “is whethe r a petitioner’s argument challe nging the legality of his detention could have been tested in an in itial § 2255 motion. If the answer is yes, then the petitioner may not reso rt to the savings clause and § 2241.” 636 F.3d at 584.

3 See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc. , 851 F.3d 1076, 1080, 1099-1100 (11th Ci r. 2017) (en banc).6 Among the reasons for our rule was that “[ w]hen Congress adopted § 2255(h), . . . it was surely aware that prisoners might s eek to pursue second or successive motions based on newly issued statutor y interpretation decisions.” Id. at 585. However, Congress chose to allow “statu tory innocence” claims only “in initial § 2255 motions without risk of being time-barred,” 4 and not “in second or successive § 2255 motions.” Id. at 585-86. Further, we reject ed the argument Garcia implicitly makes—that a defendant “should be excused for failing to bring a ‘novel’ [statutory interpretation] argument for re lief” in an initial § 2255 mo tion—i.e., one that a court had not yet approved. Id. at 589. We explained that “[t]o invoke the savings clause, there must be someth ing about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention.” Id. And “the fact that [a defendant] or his counsel may not have thought of [a novel statutory interpretation argument later approved by a court] earlier doesn’t speak to the relevant question whether § 2255 itself provided [the defendant ] with an adequate and effective remedial mechanism for testing such an argument.” Id. We are bound to apply Prost , notwithstanding the majority circuit view on application of the savings clau se to claims that turn on ne w statutory interpretations. See United States v. Brooks , 751 F.3d 1204, 1209 (10th Cir. 2014) (“Absent en banc

4 Congress accomplish ed this task through § 22 55(f)(3), which allows the one-year limitations period for filing an in itial § 2255 motion to run from “the date on which the right asserted was initially recognized by th e Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”7 reconsideration, we . . . ca nnot overturn the decision of a nother panel of this court” unless “the Supreme Court issues an interv ening decision that is contrary to or invalidates our previous analysis.” (int ernal quotation marks om itted)). We must therefore affirm the dist rict court’s judgment.
III. Conclusion For the foregoing reasons, we affirm the district court’s judgment. We grant Garcia’s motion to proceed in forma pa uperis on appeal. Because the relevant statute, 28 U.S.C. §§ 1915(a )(1), excuses only “prepayment of fees,” Garcia is obligated to pay the full amount of th e appellate filing a nd docketing fees immediately to the United States District Court for the District of Colorado.

Entered for the Court
Bobby R. Baldock Circuit Judge