UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ NATHAN HILL Petitioner–Appellant,

v. J. OLIVER, Warden Respondent–Appellee. No. 16-1165 (D.C. No. 1:14-CV -01528-MSK-KLM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , McKAY , and MORITZ , Circuit Judges.

________________ _________________ Nathan Hill, a federal prisoner, appeals the denial of his application for a writ of habeas corpus under 28 U.S.C. § 2241. Mr. Hill conten ds that his sentence is unlawful under Alleyne v. United States , ––– U.S. ––––, 133 S. Ct. 215 1 (2013). The district court denied his habeas applica tion after concluding that Alleyne does not apply retroactively on collateral review. Because § 2241 is not the proper vehicle for his Alleyne claim, we reverse and remand to the district court with instructions to dism iss the case without prejudice for lack of statutory jurisdiction.

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materially 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 This or der and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 6, 2017
Elisabeth A. Shumaker Clerk of Court- 2 - * In 1999, Mr. Hill was convicted by a federal grand jury of continuing criminal enterprise, among other offenses . At sentencing, the distri ct court found that Mr. Hill was the principal leader of the continuing criminal enterprise and the enterprise was responsible for at least 4,000 kilograms of co caine. These facts increased his mandatory minimum from twenty years to a term of lif e imprisonment under 21 U.S.C. § 848(b). (Because Mr. Hill was found by the district court to have directed at least two murders, his sentencing guideline range was also life.) Mr. Hill appealed, arguing that, under Apprendi v. New Jersey , 530 U.S 466 (2000), his sentence “violate[d] the due process clause becaus e the jury did not conclude that the evidence establishes beyond a reasonab le doubt the events that led to the life term[ ].” United States v. Hill , 252 F.3d 919, 921 (7th Cir. 2001). The Seventh Circuit disagreed, holding that Apprendi does not apply to mandatory minimums. Id. at 921. It affirmed his conviction and sentence, id. at 929, and the Supreme Court denied Mr. Hill’s petition for writ of certiorari, see Hill v. United States , 536 U.S. 962 (2002). Numerous federal habeas proceedings followed. See Hill v. Daniels , 504 F. App’x 683, 685–86 (10th Cir. 2012) (d iscussing Mr. Hill’s prior habeas claims and affirming the dismissal of his third § 2241 motion). In 2003 , Mr. Hill challenged his conviction under 28 U.S.C. § 2255. United States v. Hill , No. 03 C 4196, 2004 WL 2064622 (N.D. Ill. Sept. 13, 2004). In this, his first and only § 2255 motion, he rais ed ten grounds for relief, none of which were a renewal of his Apprendi argument. See id. The § 2255 motion was denied. Id. at *17. Shortly after that, Mr. Hill filed an application with the Seventh- 3 - Circuit seeking permission to file a se cond or successive § 2255 motion. See Order , Hill v. United States , No. 06–1344 (7th Cir. Feb. 7, 2006). The ap plication was denied. See id. Over the next six years, Mr. Hill filed three habeas applicati ons under 28 U.S.C. §
2241. Hill , 504 F. App’x at 685–86. All three were denied. Id. In 2013, the Supreme Court decided Alleyne v. United States , ––– U.S. ––––, 133 S. Ct. 2151 (2013), which ex tended the reasoning of Apprendi to mandatory minimums, holding that any fact that increases a manda tory minimum is an el ement that must be charged in an indictment a nd proven beyond a reasonable doubt to jury. (This is essentially what Mr. Hill had argued on dire ct appeal.) Consequently, Mr. Hill filed the present § 2241 habeas application—his fo urth—asserting that his sentencing was unlawful under Alleyne because it was the judge, not th e jury, who had found the facts that increased his mandatory minimum. The district court denied Mr. Hill’s habeas application after concluding that Alleyne does not apply retroactively on collateral review. Mr. Hill timely appealed.
* Mr. Hill challenges his sentence under 28 U.S.C. § 2241. Ordinarily, a motion under 28 U.S.C. § 2255 is “the only m eans to challenge the validity of a federal conviction following the conclu sion of direct appeal.” Hale v. Fox , 829 F.3d 1162, 1165 (10th Cir. 2016), cert. denied sub nom. Hale v. Julian , 137 S. Ct. 641 (2017). “But in rare instances, a prisoner may attack his underlying conviction by bringing a § 2241 habeas corpus application under” § 2255(e)’s savings clause if § 2255 is “inadequate or- 4 - ineffective to test the le gality of his detention.” Id. (internal citations and quotation marks omitted). We determine whether the § 2255 remedy was “inadequate or ineffective” by asking “whether a petitioner’s argument cha llenging the legality of his detention could have been tested in an initial § 2255 motion. If the answ er is yes, then the petitioner may not resort to the savings clause and § 2241.” Prost v. Anderson , 636 F.3d 578, 584 (10th Cir. 2011). This is true even if the ar gument would likely have failed under existing circuit precedent or had already been raised and rejected on di rect appeal; the question is whether the argument could have been rais ed, not whether it would have succeeded. See id. ; see also Abernathy v. Wandes , 713 F.3d 538, 551 (10th Cir. 2013). The habeas applicant has the burden to show that he satisfies § 2255(e)’s saving clause. Hale , 829 F.3d at 1170. “[W]hen a federal petitioner fa ils to establish that he has satisfied § 2255(e)’s savings clause test—thus, precl uding him from proceedi ng under § 2241—the court lacks statutory jurisdiction to hear his habeas claims.” Abernathy , 713 F.3d at 557. As Mr. Hill himself concedes, his challe nge to the use of judge-found facts to increase his mandatory-minimum sentence fails under Prost because it could have been raised in his § 2255 motion. ( See Suppl. App. at 8 (“Hill’s Alleyne challenges cannot

meet Prost ’s Metric Test.”).) Recognizing this problem, he suggests first that Prost was wrongly decided. ( See Unfiled Pro Se Reply Brief at 5.) But a “panel of this court cannot overrule the judgment of another panel absent en banc consideration or an intervening Supreme Court deci sion that is contrary to or invalidates our previous analysis,” United States v. Nichols , 775 F.3d 1225, 1230 (10t h Cir. 2014) (internal- 5 - quotation marks and alterations omitted), and Mr. Hill has iden tified no such intervening, controlling authority. Next, Mr. Hill contends that applying Prost to his case would raise serious constitutional questions under the U.S. C onstitution’s Suspensi on Clause, the Due Process Clause, and the Eighth Amendment. We disagree. Though we have recognized “there may be situations where § 2255(e)’s sa vings clause may need to be interpreted to avoid ‘serious cons titutional questions,’” Abernathy , 713 F.3d at 556–57, this is not one of them. According to Mr. Hill, denying him th e opportunity to proceed under § 2241 would violate the Suspension Cl ause. Not so. “It is well-es tablished that the Suspension Clause does not prohibit th e ‘substitution of a collatera l remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.’” Abernathy , 713 F.3d at 555 (emphasis omitted) (quoting Swain v. Pressley , 430 U.S. 372, 381 (1977)). Here, § 2255 is the relevant “substitute.” Mr. Hill had a full opport unity under § 2255 to make the claim he presses now. Contrary to his assertions, Mr. Hill was not prevented from raising it then by the law-of-the-cas e doctrine or by adverse precedent. See Abernathy , 713 F.3d at 551. Mr. Hill’s Due Process Clause argument also falls short. We recently rejected a similar challenge in Hale

. See Hale , 829 F.3d at 1175–76. In Hale , a federal prisoner filed a habeas corpus application under 28 U.S.C. § 2241 after having filed an unsuccessful motion for collateral relief under 28 U.S.C. § 2255. Id . at 1164. There, as here, the habeas applicant “seiz[ed] upo n the constitutional avoidance language in Prost ”- 6 - to argue “that applying § 2255(e) to bar his § 2241 [ ] claim would raise serious concerns under the Due Process a nd Suspension Clauses.” Id. at 1175. “But,” we held, the habeas applicant “fail[ed] to identify the basis for his due process in terest in collateral review beyond the procedure he ha s already received.” Id . Like the habeas applicant in Hale , Mr. Hill has not identified a substantive right to challenge his conviction “after already unsuccessfully bringing one round of collateral review.” Id . So, he has failed “[t]o make out a procedural due process violation in this context.” Id. Finally, Mr. Hill contends, without citation to legal authority, that “it is against cruel and unusual punish ment to not provide H ill with an avenue to present his claims of ‘not guilty.’” (Unfile d Pro Se Reply Brief at 8.) But, as explained above, Mr. Hill did have an avenue to present his Apprendi -based challenge to his sentencing—his 2003 § 2255 motion. Because Mr. Hill failed to satisfy § 2255( e)’s savings clause, the district court lacked statutory jurisdiction to consider his claim. See Abernathy , 713 F.3d at 557. Instead of dismissing the § 2 241 application on this ground, however, the district court assumed without deciding that it had statutory jurisdiction in order to reach the merits. This was not necessarily wrong, see id. at 558 n. 17, but by “res olv[ing] this appeal on jurisdictional grounds, we have no need to definitively opine on whether [this] hypothetical-jurisdiction approach . . . would be . . . viable.” Id.- 7 - Accordingly, we REVERSE and REMAND to the district court with instructions to dismiss the case without prejudice fo r lack of statutory jurisdiction.

Entered for the Court
Monroe G. McKay Circuit Judge