UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DOMINIQUE ALEXANDER JONES, Petitioner - Appellant,

v. WARDEN, USP-LE AVENWORTH, Respondent - Appellee. No. 19-3264 (D.C. No. 5:19- CV-03217-JWL) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before CARSON , BALDOCK , and MURPHY , Circuit Judges.

________________ _________________ Petitioner Dominique Alexander Jone s, a federal prisoner proceeding pro se , filed a petition for habeas corpus under 28 U. S.C. § 2241 in the United States District Court for the District of Ka nsas. In that petition, Pe titioner seeks to challenge a sentence imposed by the United States District Court for the Eastern District of North Carolina. The District of Kansas dismisse d this action without prejudice for lack of statutory jurisdicti on. We affirm.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### July 29, 2020 Christopher M. Wolpert Clerk of Court2 I. Petitioner pleaded guilty to possession with intent to distri bute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). In 2011, the United States District Court for the Eastern Distri ct of North Carolina sentenced Petitioner to 360 months’ imprisonment. Petitioner appealed his convi ction and sentence. The Fourth Circuit concluded that the sentencing issues he sought to raise on appeal fell squarely within the scope of his waiver of appellate rights. Unit ed States v. Jones, 448 F. App’x 354, 356 (4th Cir. 2011). Petitioner next filed a 28 U.S. C. § 2255 motion in the Ea stern District of North Carolina. He argued that the district court erred by classify ing him as a career offender in light of the Fourth Circuit’ s decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). The district c ourt concluded that Pe titioner’s appellate waiver was both knowing and voluntary and he thus waiv ed the right to pursue the claim he set forth in his § 2255 motion. J ones v. United States , 2013 WL 4828558, at *2 (E.D.N.C. 2013). The Fourth Circu it dismissed Petitioner’s appeal, concluding that Petitioner failed to make the requisite showing for a certificate of appealability. United States v. Jones, 565 F. App’x 202 (4th Cir. 2014). Petitioner filed another § 2255 motion as well as a Federal Rule of Civil Procedure 60(b) motion. The Eastern Distri ct of North Carolina dismissed the § 2255 motion as a successive but unauthorized pe tition and treated Petitioner’s Rule 60(b) motion as a successive § 2255 motion and dism issed it on the same basis. The Fourth Circuit said Petitioner failed to demonstrate that the distri ct court’s ruling that he3 lacked authorization to subm it a successive § 2255 motion wa s debatable. It denied Petitioner a certificate of app ealability. United States v. Jones, 616 F. App’x 98, 98 (4th Cir. 2015). Finally, Petitioner filed this § 2241 motio n in the District of Kansas. Petitioner argues that the remedy under § 22 55 is inadequate or ineffective to challenge his conviction or sentence. This is because, accordin g to Petitioner, his sentence was legal at the tim e the Eastern District of North Carolina improperly enhanced his sentence but a later decision—Simmons, 649 F.3d 237, made retroactive by Miller v. United States, 735 F.3d 141, 147 (4th Cir. 2013)—would have prohibited the enhancement. The district court held that the savings clause of § 2255(e) does not apply to Petitioner beca use he has not shown that § 2255 is an inadequate or ineffective ve hicle for relief. The distri ct court dismissed the case without prejudice for lack of statutory jurisdiction. II. When presented with a § 2241 motion, a di strict court first looks to whether it has statutory jurisdiction to consider a pe titioner’s motion. Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013). The primary vehicle to attack the validity of a federal conviction or senten ce is a § 2255 motion. Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011). In c ontrast, a § 2241 motion is “generally reserved for complaints about the nature of a prisone r’s confinement, not the fact of his confinement.” Id. “[I]n rare instances ,” however, “a prisoner may attack his underlying conviction by br inging a § 2241 habeas corpus application under the4 savings clause in § 2255(e).” Hale v. Fox, 829 F.3d 1162, 116 5 (10th Cir. 2016) (internal citation and quota tion omitted). Under § 2255( e), a prisoner can use a § 2241 motion to attack his conviction or sentence if a § 2255 mo tion is “inadequate or ineffective to test the lega lity of his detention.” Id. ( quoting 28 U.S.C. § 2255(e)). If a petitioner cannot meet § 2255(e)’s test, “the court lacks stat utory jurisdiction to hear his habeas claims.” Abernathy, 713 F.3d at 557. “To invoke the savings clause, there mu st be something about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention.” Prost, 636 F.3d at 589. Failing to prevail under § 2255 is not sufficient to satisfy the savings clause. Id. “The savings clause doesn’t guarantee results, only process.” Id. Accordingly, “the possibili ty of an erroneous result—the denial of relief that should have been granted—do es not render the procedural mechanism Congress provided for bringing that claim (whether it be 28 U.S.C. §§ 1331, 1332, 2201, 2255, or otherwise) an inadequate or ineffective remedial vehicle for testing its merits within the plain meaning of the savings clause.” Id. Petitioner contends that in light of th e Fourth Circuit’s ruling in Simmons, issued after the district c ourt sentenced him, the Easter n District of North Carolina should not have classified him as a career of fender. In other word s, he asserts that the methodology the Fourth Circuit used to classify career offenders when the district court sentenced him differs from present day procedures. “But an intervening change in how a provision is interpreted does not re nder § 2255 inadequate or ineffective.” Guerrero v. English, 743 F. App’x 207, 209 (10th Cir. 2018) (cit ing Prost, 636 F.3d5 at 588). In this case , the existence of an appellate wa iver in a plea agreement which prohibits an appellate court from consider ing the issue in a § 2255 motion does not render § 2255 an inadequate or ineffective vehicle. We have no statutory jurisdiction ove r a § 2241 motion unless the petitioner shows that “the § 2255 remedi al vehicle is inadequate or ineffective.” Prost, 636 F.3d at 590. Because Petitioner has not done that, the district court correctly dismissed this case without prejudice for lack of statutory jurisdiction. AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge