UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JIMMY EUGENE RHODES, Defendant - Appellant. No. 20-6012 (D.C. No. 5:01- CR-00202-R-1) (W.D. Okla.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before TYMKOVICH , Chief Judge, MURPHY and PHILLIPS , Circuit Judges.

_________________________________ Jimmy Eugene Rhodes was convicted of fe deral crimes in district court in Oklahoma. A district court in Illinois gr anted his pro se application for a writ of habeas corpus under 28 U.S.C. § 2241 and ordered that Rhodes be released. That order also purported to vacat e his sentence and order the Ok lahoma district court to resentence him. Rhodes then moved the Oklahoma district c ourt to release him pending his resentencing. The Oklahoma dist rict court denied his motion for release,

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### November 6, 2020 Christopher M. Wolpert Clerk of Court2 concluding that the Illinois district court lacked jurisdiction to grant his § 2241 application. It also dec lined to vacate his sentence an d to resentence him, holding that the Illinois district cour t lacked authority to order th e Oklahoma district court to do either. Rhodes has since been releas ed from custody pursua nt to the Illinois district court’s § 2241 order. Appearing pro se, he app eals the portion of the order refusing to vacate his sentence and resentence him. We affirm. Background 1. Rhodes’ Conviction, Direct Appeal, and First § 2255 Motion In 2002, Rhodes was convicted in the Western District of Oklahoma (Oklahoma district court) of firearm and drug offenses, including two counts of being a felon in possession of a firearm in viol ation of 18 U.S.C. § 922(g)(1). He was subject to a mandatory minimum fifteen-year sentence for the felon-in-possession convictions under the Armed Career Crim inal Act (ACCA), 18 U.S.C. § 924(e), based on his having at least three prior st ate convictions that qualified as violent felonies, one for shooting with intent to ki ll, and two for second-degree burglary, all out of Oklahoma. The Oklahoma district court sentenced him to concurrent 260-month terms for the felon-in-possessi on counts and shorter concurrent terms on the remaining convictions. On direct appeal, Rhodes challenged his convictions but not his sentence. We affirmed. United States v. Rhodes , 62 F. App’x 869, 87 6 (10th Cir. 2003) ( Rhodes I ). Rhodes then filed his first 28 U.S.C. § 2255 motion. He alleged ineffective assistance of counsel but agai n did not challenge his senten ce. The Oklahoma district3 court denied the motion and we denied a certificate of a ppealability (COA). United States v. Rhodes , 157 F. App’x 84, 89 (10th Cir. 2005) ( Rhodes II ). 2. Denial of Rhodes’ Authorized § 2255 Motion Based on Johnson In 2016, we granted Rhodes authorizati on to file a second or successive § 2255 motion based on Johnson v. United States , 576 U.S. 591 (2015), in which the Supreme Court held the definition of “vio lent felony” in the ACCA’s “residual clause” was unconstitutionally vague such that enhancing a sentence based on that clause violates a defendant ’s right to due process, id. at 596, 606. Johnson did not invalidate the remainder of the ACCA’s de finition of violent felony, including its “enumerated offense clause,” which defines violent felony as “burglary, arson, or extortion, [or an offense that] involve s [the] use of explosives,” 18 U.S.C. § 924(e)(2)(B)(ii). See Johnson , 576 U.S. at 606. In his § 2255 motion, Rhodes mainta ined that his Oklahoma burglary convictions did not qualify as violent fel onies under the enumerated offense clause because the elements of th e state offense did not matc h the definition of generic burglary in light of Mathis v. United States , 136 S. Ct. 2243, 2251-54 (2016) (clarifying the approach for determining whether a prior conviction under a divisible state statute categorically meets the ACCA’s defin ition of violent felony). Proceeding from the premise th at his burglary convictions were not violent felonies under the enumerated offense clause, R hodes claimed his sentence was illegally enhanced based on the residual clause. Th e Oklahoma district court dismissed the4 motion as untimely, concluding that his argument relied on Mathis , not Johnson , and

a Mathis claim was untimely. We granted a COA, determined that th e motion was timely because it invoked Johnson , but concluded that Rhodes’ Johnson claim failed because his sentence was enhanced under the ACCA’s enumerated of fense clause, not its invalidated residual clause. United States v. Rhodes , 721 F. App’x 780, 782 (10th Cir. 2018) ( Rhodes III ). We noted that when Rhodes was sent enced, we “had rep eatedly held that Oklahoma second degree burglary qualified as an enumerated of fense if underlying documents indicated that the de fendant burgled a building.” Id. And because the sentencing record established that “Rhode s was convicted of burgling homes,” we concluded “there woul d have been little dispute at the time of sentencing that Rhodes’ burglary convictions cons tituted enumerated offenses.” Id. (ellipsis and internal quotation marks omitted); see United States v. Snyder, 871 F.3d 1122, 1129 (10th Cir. 2017) (exp laining that “it may be possible to determine that a sentencing court did not rely on the residual clause—e ven when the sentencing record alone is unclear—by looking to the relevant backgr ound legal environmen t at the time of sentencing” (emphasis and internal quotation marks omitted)). In so concluding, we expressed no opinion about whether our prior cases holding that Oklahoma seconddegree burglary of a building qualified as an enumerated offense remain good law following Mathis , because Mathis was decided after Rhodes’ sentencing hearing. Rhodes III , 721 F. App’x at 782 & n.2; see Snyder , 871 F.3d at 1129 (explaining that5 “the relevant background legal enviro nment” does not include “post-sentencing decisions”). 3. Denial of Rhodes’ Motion for Au thorization to File a Second or Successive § 2255 Motion Based on Mathis In 2019, Rhodes sought authorization from this court to file another successive § 2255 motion based, as pertinent here, on Mathis and United States v. Hamilton , 889 F.3d 688 (10th Cir. 2018), in which we held that Oklahoma second-degree burglary does not meet the defi nition of generic burglary under Mathis and thus does not qualify as a violent felony under the enumerated offense clause, see id. at 699. We denied authorization because Mathis was “dictated by decades of precedent” and was thus not a new rule, and Hamilton , a decision from this court not the Supreme Court, does not qualify as a new rule of retroactively applicable law under § 2255(h)(2). In re Rhodes , No. 19-6144, Order at 5 ( 10th Cir. Oct. 9, 2019) ( Rhodes IV ). 4. Illinois District Court Order Gran ting Rhodes’ § 2241 Application While the COA proceeding in Rhodes IV was pending, Rhodes filed a § 2241 habeas application in the Un ited States District Court fo r the Southern District of Illinois (Illinois district c ourt), where he was incarcer ated. As in his 2016 § 2255 motion, Rhodes relied on Mathis to claim that his Oklahoma second-degree burglary convictions are not violent felonies under th e enumerated offense clause and that his sentence was illegally enhanced under the residual clause.6 After we decided Rhodes IV, the Illinois district cour t concluded that Rhodes could challenge his convic tion and sentence under § 22 41 because the remedy of § 2255 was inadequate or ineffective under Seventh Circuit precedent. The court (Judge Yandle) then granted Rhodes’ § 2241 application, c oncluding that under Mathis and Hamilton , his Oklahoma second-degree burgl ary convictions could not support his ACCA enhancement and that he was “entitled to be resentenced free of the [ACCA] designation.” R., Vol. 4 at 34. That order purported to vacate the sentence imposed by the Oklahoma district court, and to order that court to resentence Rhodes. Id. 5. Order Denying Motion for Immediat e Release Pending Resentencing Both parties filed motions in the Oklahoma distri ct court addressing Judge Yandle’s order: Rhodes moved for immediat e release pending resentencing, and the government moved to strike the order from the docket and, if necessary, reinstate the original judgment and sentence. The Okla homa district court denied both motions and declined to vacate Rhode s’ sentence and resentence hi m. With respect to the motion for immediate release pending rese ntencing, the court held that “Judge Yandle lack[ed] the authority to order [t he Oklahoma district court] to vacate Mr. Rhodes’ sentence or his sentencing enhancement or to resentence him.” Id. at 90. Likewise, with respect to the govern ment’s motion to strike Judge Yandle’s order, the Oklahoma district court concluded it had no author ity to strike an order of another district court. Afte r the Oklahoma district court entered that order, Rhodes was released from custody pursu ant to the Illinois district court’s order. He now7 appeals the portion of the Oklahoma distri ct court’s order refusing to vacate his sentence, which he has not fully served, and to resentence him. Discussion Despite this somewhat co mplicated procedural b ackground, the only issue before us is a straightforw ard jurisdictional one: did the Illinois district court have authority in its § 2241 order to vacate the sentence imposed by the Oklahoma district court and to order that court to resentence Rhodes? The answer is plainly no. We review questions regard ing a district court’s jurisdiction under § 2241 de

novo. Abernathy v. Wandes , 713 F.3d 538, 544, 557 (10th Cir. 2013). We apply the same standard in reviewing a district court’s legal determination regarding its authority to modify a crimin al defendant’s sentence. United States v. Blackwell , 81 F.3d 945, 947 (10t h Cir. 1996). A § 2241 application “typically attacks th e execution of a sentence rather than its validity and must be filed in the dist rict where the prisone r is confined.” Brace v. United States , 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation marks omitted). “A § 2255 motion, on the other hand, is genera lly the exclusive remedy for a federal prisoner seeking to attack the legality of detention, and must be filed in the district that imposed the se ntence,” regardless of wh ere he is incarcerated. Id. (brackets and internal quotation marks omit ted). Absent circumstances not present here, a prisoner is entitled to only one oppor tunity to challenge the legality of his

sentence. See § 2255(h) (identifying circumstances in which a prisoner may seek authorization to file a sec ond or successive § 2255 motion); Prost v. Anderson ,8 636 F.3d 578, 586 (10th Ci r. 2011) (“[A] prisoner generally is entitled to only one . . . opportunity to test the lega lity of his detention, in his initial § 2255 motion.”). Consistent with that filing limitation, the district cour t in the jurisdiction where a prisoner is incarcerated may not entertain a § 2241 habeas application challenging the underlying conviction and se ntence unless the prisoner es tablishes under § 2255(e)’s savings clause that the remedy of a § 2255 moti on “is inadequate or ineffective to test the legality of his detention.” § 2255(e); see Abernathy , 713 F.3d at 557 (recognizing that the limitation in the savings clause is jurisdictional). In this circuit, “[t]he relevant metric or measur e” of § 2255’s adequacy or effectiveness “is whether 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 resort to the savings clause and § 2241.” Prost , 636 F.3d at 584. Because the text of § 2255(e) di stinguishes between remedy and relief, our test focuses on opportunity, not result: “it is the infirmity of the § 2255 remedy itself, not the failure to use it or to prevail under it, that is determinative. To invoke the savings clause, there must be somethi ng about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention.” Prost , 636 F.3d at 589. We have rejected the notion that a defendant “should be excused for failing to bring a novel argument for relief that the Supreme Court hadn’t yet approved” in his first § 2255 motion, because that failure “doesn’t speak to the relevant question whether § 2255 itself provided him with an adequa te and effective remedial mechanism for testing such an argument.” Id. (internal quotation marks omitted); see9 also id. at 586 (explaining that “i f the § 2255 remedial mechanism could be deemed ‘inadequate or ineffective’ any time a peti tioner is barred from raising a meritorious second or successive challenge ,” the filing limitation in § 2255(h) “would become a nullity”). Rhodes’ § 2241 application challenged th e validity of his sentence, not its execution. He sought release based on subs tantive law that post-dates the resolution of his initial § 2255 motion—new law that he claims makes it clear that his Oklahoma burglary convicti ons cannot support an en hanced sentence under the enumerated offense clause. His claim was thus a § 2255 claim. But Rhodes did not establish, nor could he, that “something about the initial § 2255 procedure [] itself [was] inadequate or ineffective for testing ” his claim, and the fact that his argument would have been novel at that time does not mean he did not have the opportunity to raise it. Prost , 636 F.3d at 589. Thus, had Rhodes been incarcerated in Oklahoma and filed his § 2241 application in the Oklahom a district court, th is court’s precedent would have precluded relief. This case is a perfect exampl e of the practical problems district courts face in trying to provide § 2255 relief under § 2241 when the habeas court is not the sentencing court. We recognize that the Se venth Circuit’s saving s clause test would permit Rhodes to use § 2241 to obtain relief in these circumstances. See Chazen v. Marske , 938 F.3d 851, 863 (7th Cir. 2019) (petit ioner entitled to relief under § 2241 because challenging the use of his prior bur glary convictions to enhance his sentence10 under the enumerated clause wo uld have been futile before Mathis ). 1 And we understand the quandary the Illi nois district court faced gi ven the conflict between its circuit’s savings clause test and ours, le t alone the fact that we have already concluded that Rhodes’ senten ce enhancement argument does not entitle him to file a second or successive § 2255 motion, see Rhodes IV at 5. But even if the Illinois district court properly ex ercised jurisdiction over Rhodes’ § 2241 application under the Seventh Circuit’s savi ngs clause test, it did not have jurisdiction to vacate his sentence. While § 2241 gives a district judge the “power to release” a defendant confined in its district, a habeas court “has no other power,” and “cannot revise the [underlying] judgment.” Fay v. Noia , 372 U.S. 391, 430-31 (1963), abrogated on other grounds by Wainwright v. Sykes , 433 U.S. 72, 87- 88 (1977); see also In re Medley , 134 U.S. 160, 173-74 (189 0) (recognizing that a habeas court “cannot do anything else than discharge the prisoner from the wrongful confinement”). Nor did it have jurisd iction to order the sentencing court to resentence Rhodes. The res pondent in a § 2241 proceedi ng is the petitioner’s jailer, not the court that sentenced him, and the on ly available remedies in habeas are those the jailer can effect, such as the prisoner’s release or a re laxation of the conditions of his confinement. See Braden v. 30th Jud. Circuit Court of Ky ., 410 U.S. 484, 494-95

1 The Seventh Circuit’s savings clause te st permits a federal prisoner to raise an alleged sentence-enhancement e rror under § 2241 if he “relies on a statutory-interpretation case” and “a retro active decision that he could not have invoked in his first § 2255 motion,” a nd the sentence enhancement is “a grave enough error to be deemed a miscarriage of justice.” Brown v. Caraway , 719 F.3d 583, 586-87 (7th Cir. 2013) (i nternal quotation marks omitted).11 (1973) (explaining that a writ of habeas co rpus is directed to “the person who holds [the prisoner] in what is alleged to be unlawful custody,” and provides relief by compelling the jailer “to re lease his constraint”). In any event, district courts in this circuit are bound by our decisions and those of the United States Supreme Court—they ar e not bound by decisions of other district courts, much less district courts in other circuits. See Camreta v. Greene , 563 U.S. 692, 709 n.7 (2011) (“A deci sion of a federal district court judge is not binding precedent in either a different judicial district, the same j udicial district, or even upon the same judge in a different case.” (internal quotation marks omitted)). The Oklahoma district court was thus bound by our decision in Rhodes IV that Rhodes is not entitled to relief under § 2255 based on Mathis and Hamilton , not the Illinois district court’s c ontrary decision. See Dobbs v. Anthem Blue Cross & Blue Shield , 600 F.3d 1275, 1279 (10th Cir. 2010) (explaining that if th e circuit court decided an issue, “the district court was bound by its determination under the law of the case doctrine, and under the general rule that a district court is bound by decisions made by its circuit court” (citation omitted)). Acco rdingly, not only did the Illinois district court lack jurisdiction to vacate Rhodes’ sentence and order the Oklahoma district court to resentence him, the Oklahoma distri ct court lacked aut hority to follow the Illinois district court’s or der given our decision in Rhodes IV

. Conclusion The district court’s order is affirmed . Rhodes’ motion to proceed on appeal without prepayment of filing fe es is granted, and he is reminded of his obligation to12 continue making partial payments toward his appellate filing fee until the entire balance is paid in full. See 28 U.S.C. § 1915(b)(1)-(2).

Entered for the Court
Gregory A. Phillips Circuit Judge