UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

JOSEPH MICHAEL MOONEY, 

 Petitioner-Appellant, 

v. 

DEBRA DUNHAM, Warden, 

Englewood FCI, 

 Respondent-Appellee. 

 No. 16-1302 

(D.C. No. 1:16-CV-01100-GPG) 

(D. Colo.) 

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ORDER AND JUDGMENT*

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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Mr. Joseph Michael Mooney is a federal prisoner who seeks habeas 

relief under 28 U.S.C. § 2241. The district court dismissed Mr. Mooney’s 

claim, concluding that Mr. Mooney could not invoke § 2241 because he 

had an adequate and effective remedy under 28 U.S.C. § 2255. Mr. Mooney 

appeals, and we affirm. 

 

* Oral argument would not be helpful in 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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 23, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

 Under § 2255(e), a federal prisoner can challenge the validity of a 

sentence under § 2241 only if § 2255 is “inadequate or ineffective to test 

the legality of his detention.” Abernathy v. Wandes, 713 F.3d 538, 547 

(10th Cir. 2013) (citations omitted). Use of § 2241 is impermissible if the 

“petitioner’s argument challenging the legality of his detention could have 

been tested in an initial § 2255 motion.” Prost v. Anderson, 636 F.3d 578, 

584 (10th Cir. 2011). 

 Mr. Mooney cannot use § 2241 because he had an adequate and 

effective remedy in § 2255. When Mr. Mooney invoked § 2255, he was 

unsuccessful, but his failure to obtain relief under § 2255 does not mean 

that the remedy is inadequate or ineffective. See Bradshaw v. Story 86 F.3d 

164, 166 (10th Cir. 1996). 

 Mr. Mooney argues that Prost v. Anderson was incorrectly decided 

and leads to constitutional violations.1

 We reject this argument. 

 In Prost, we held that petitioners cannot invoke § 2241 if they could 

have tested their claims in an initial motion filed under § 2255. Prost, 636 

F.3d at 584. Mr. Mooney argues that Prost was incorrectly decided and that 

this opinion leads to violations of the U.S. Constitution. But even if we 

disagreed with Prost, we would be bound to follow that opinion because 

 

1 Mr. Mooney also presses the merits of his underlying claims. But we 

do not reach the merits.
3 

one panel cannot overrule another panel. United States v. Killion, 7 F.3d 

927, 930 (10th Cir. 1993). 

 According to Mr. Mooney, the remedy under § 2255 is deficient 

because “it fails to allow for a ‘meaningful opportunity’ to raise a claim of 

factual innocence.” Appellant’s Br. at 15. But Mr. Mooney had the 

opportunity to urge actual innocence when he sought relief under § 2255. 

The Constitution does not entitle him to a second opportunity to convince 

the court of his actual innocence. Hale v. Fox, 829 F.3d 1162, 1171-72 

(10th Cir. 2016), petition for cert. filed (U.S. Oct. 21, 2016) (No. 16-

6511). 

 Mr. Mooney argues that denying a second chance at proving actual 

innocence would violate the Suspension Clause and the constitutional right 

to due process. But we recently rejected virtually identical arguments in 

Hale v. Fox. Id. at 1175-76. 

* * * 

 We cannot grant relief under § 2241 because the § 2255 motion 

provided a remedy that was adequate and effective. Thus, we affirm the 

dismissal of the § 2241 habeas petition. 

Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge