UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ KENNETH L. KIRKLAND, Petitioner - Appellant,

v. N.C. ENGLISH, Respondent - Appellee. No. 18-3175 (D.C. No. 5:18- CV-03186-JWL) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , MATHESON , and EID , Circuit Judges.

________________ _________________ Proceeding pro se, federal pris oner Kenneth Kirkland appeals th e district court’s denial of his 28 U.S.C. § 2241 habeas application—his t hird attempt at habeas relief and second under § 2241. 1 The district court di smissed Mr. Kirkland’s application because it should ha ve been brought under 28 U.S.C. § 2255 and did not

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.

1 Mr. Kirkland requests a certif icate of appealability, Aplt. Br . at 6-7, but a federal prisoner is not required to obtain one to seek review o f a district court’s denial of a habeas app lication under § 2241, Eldridge v. Berkebile , 791 F.3d 1239, 1243 (10th Cir. 2015). FILED United States Court of Appeals Tenth Circuit 

### November 30, 2018
Elisabeth A. Shumaker Clerk of Court2 qualify for the exception in § 22 55(e)’s savings clause. Exerc ising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND In 2008, Mr. Kirkland was convict ed in the United States Distri ct Court for the Southern District of Illinois of i ntent to distribute cocaine b ase in violation of 21 U.S.C. § 841(a)(1). United States v. Kirkland , No. 3:07-cr-30137-MJ-DGW, (S.D. Ill. Sept. 19, 2008). He wa s sentenced to 240 months in prison. Id. Mr. Kirkland received a longer sente nce because he had a prior felo ny drug offense under 21 U.S.C. § 841. In his brief, h e reports this predicate offen se was for second-degree drug trafficking unde r Missouri law. Aplt. Br. at 1. Mr. Kirk land is serving his sentence at a federal prison in Kansas. Mr. Kirkland appealed his convic tion to the Seventh Circuit, ar guing that: (1) the police held him for an unreasonable period of time befo re bringing him before a magistrate, and (2) the distri ct court erred in failing to su ppress his confession. See United States v. Kirkland , 567 F.3d 316, 318-19 (7th Cir. 2009). The Seventh Circuit affirmed. Id. at 322. The Supreme Cour t denied certiorari. Kirkland v. United
States , 558 U.S. 1116 (2010). Mr. Kirkland next moved to redu ce his sentence based on the Fai r Sentencing Act of 2010. The district court denied this motion. Order Mot . Reduce Sentence, United States v. Kirkland , No. 3:07-cr-30137-MJ-DGW, ( S.D. Ill. Feb. 2, 2012). He sought the same reli ef—without success—twi ce more in the ensuin g five years. See Mem. and Order, United States v. Kirkland , No. 3:07-cr-30137-MJ-DGW (S.D. Ill.3 May 14, 2015); Min. Order, United States v. Kirkland , No. 3:07-cr-30137-MJ-DGW, (S.D. Ill. Feb. 2, 2012). Mr. Kir kland also moved for habeas r elief under 28 U.S.C. § 2255, asserting ineffective as sistance of counsel before and during trial. Dismissal Order, Kirkland v. United States , No. 3:10-cv-00958-MJR, ( S.D. Ill. Mar. 4, 2014). The court dismissed this motion. Id. In March 2018, Mr. Kirkland—from federal prison in Kansas—appli ed for habeas relief under 28 U.S.C. § 2 241. He argued the Supreme Co urt’s decisions in Descamps v. United States , 570 U.S. 254 (2013), and Mathis v. United States , 136 S. Ct. 2243 (2016), provided a previously unavailable tool of statutory interpretation that undercut the sentencing court’s determinati on that his Missouri conviction was a predicate fel ony drug offense under 21 U.S.C. § 841. The district court dismissed this application because Mr. Kirkland failed to demonstrate that his § 2255 remedy was inadequa te under § 2255(e). About four months later, Mr. Kir kland filed a second § 2241 app lication in the District of Kansas, making the sa me arguments as he did in the first application. The district court dismissed for th e same reason. Mem. and Order, Kirkland v. English , No. 5:18-cv-03186-JWL, (D. Kan . Aug. 3, 2018). Mr. Kirkland ti mely appealed this second dismissal.
II. DISCUSSION A federal prisoner may pursue ha beas relief under two statutes. The first is 28 U.S.C. § 2241—the codification of the original federal habea s statute. See Hale
v. Fox , 829 F.3d 1162, 1166 (1 0th Cir. 2016). “[A] prisoner must bri ng a § 22414 application in the district wher e he or she is incarcerated.” Id. Section 2241 does not limit the number of applicati ons a prisoner may bring. See 28 U.S.C. § 2241; see also id. § 2244 (limiting habeas applica tions under § 225 4 and § 2255). An application under 28 U.S.C. § 224 1 generally attacks the execut ion of a sentence rather than its validity. Brace v. United States, 634 F.3d 1167, 1 169 (10th Cir. 2011). The second is 28 U.S.C. § 2255 , which Congress enacted in 1948 “to distribute the work of collateral review more evenly among federal courts” by requiring prisoners to file in the c ourt that convicted them. Hale , 829 F.3d at 1168. A prisoner may generally bring onl y one § 2255 motion, id. at 1165, but may bring a second motion with a certification from a circuit court that the motio n contains: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a w hole, would be sufficient to establish by clear and c onvincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutiona l law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h). “A § 2255 motion is ordinarily the only means to challenge the validity of a federal conviction following the conclusion of direct appeal.” Hale , 829 F.3d at 1165. But “in rare instances,” t he “savings cla use” in § 2255( e) permits a prisoner to avoid § 2255’s restriction on se cond and successive motions and bring an application under § 2241 instead. Id. (quotations omitted). The s avings clause provides:5 An application for a writ of h abeas corpus [pursuant to § 2241] in behalf of a prisoner w ho is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applican t has failed to apply for relief , by motion, to the court which sent enced him, or that such court has denied him relief, unless it also appears that the remedy by motion [pursuant to § 2255] is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e) (emphasis added). “Thus, a federal prisone r may file a § 2241 application challenging the va lidity of his sentence only if § 2255 is inadequate or ineffective to test the lega lity of his detention.” Hale , 829 F.3d at 1165 (quotations omitted). A § 2241 applicant “bears the bur den of showing he satisfies § 2255(e).” Id. at 1170. “The relevant metric or m easure” for application of § 22 55(e) “is whether a 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). If the argument could have b een tested in an initial § 2255 motion, “t hen the petitioner may not resort to the savings clause and § 2241.” Id. We have identified only two examples in which § 2255 was inadequate or in effective: (1) when the sente ncing court has been abolished, or (2) “when the app lication of § 2255(h)’s bar agai nst a second or successive motion for collateral review would seriously threate n to render the § 2255 remedial process unconstitutional.” Hale , 829 F.3d at 1173-74 (quo tations omitted). Mr. Kirkland does not contend his case meets either of the Prost exceptions. Instead, he urges us to apply a different savings clause gateke eping rule—the erroneous-circuit-foreclos ure test—recognized in Wooten v. Cauley , 677 F.3d 303,6 307-08 (6th Cir. 2012), and In re Davenport , 147 F.3d 605, 611 (7th Cir. 1998). Under this test, the savings cla use may be triggered if (1) cir cuit precedent at the time of the initial § 2255 motion precl uded the applicant from argui ng his conduct fell outside the scope of the statut e of conviction, and (2) that pr ecedent is later overturned, enabling the argument. See Lewis v. English , 736 F. App’x 749, 752 (10th Cir. 2018). Mr. Kirkland argues that the Supreme Court announced in Descamps and Mathis a method of statutory interpret ation that would render his prio r Missouri conviction ineligible to enhance his federal sentence. He argu es that because Descamps and Mathis had not been decided when he filed his § 2255 motion, they enable him to satisfy the savings clause. The district court correctly rej ected this argument. Even if, under Descamps and Mathis , his Missouri conviction were i neligible to enhance his federa l sentence,
Prost , which rejected the erroneous-c ircuit-foreclosure test, 636 F. 3d at 590-93, precludes Mr. Kirkland’s savings c lause argument. We turned do wn a similar argument in Prost —that a new case construing th e statute he was convicted and sentenced under renders that c onviction and sentence invalid. As with Mr. Prost, Mr. Kirkland cannot seek relief under § 2241 because he “was entire ly free to raise and test a [ Descamps -and- Mathis ]-type argument in his i nitial § 2255 motion.” Prost , 636 F.3d at 590. Accordingly, we need not evaluate Mr. Kirklan d’s argument that his prior offense fails under Descamps and Mathis to qualify as a felony drug offense for the purposes of his senten ce under 21 U.S.C. § 841.7 III. CONCLUSION We affirm the district court’s di smissal of Mr. Kirkland’s § 22 41 application.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge