UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

MARCOS ANTONY BOYCE, a/k/a 

MARK BOYCE, 

 Petitioner – Appellant, 

v. 

DAVID BERKEBILE, Warden, 

Respondent – Appellee. 

No. 14-1398 

(D.C. No. 1:14-CV-01481-LTB) 

(D. Colo.) 

ORDER AND JUDGMENT*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

 Marcos Boyce, a federal prisoner held in Colorado, appeals following the 

dismissal of his 28 U.S.C. § 2241 petition. Exercising jurisdiction under 28 U.S.C. 

 

* After examining appellant’s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 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 doctrines of law of the case, res judicata, and 

collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. 

R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 26, 2015

Elisabeth A. Shumaker 

Clerk of Court

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§ 1291, we affirm. 

I 

 In 1995, Boyce was convicted in the U.S. District Court for the Northern District 

of Georgia of being an accessory to the murder of a fellow prisoner. As Boyce 

acknowledged below, he has attempted on several occasions to collaterally attack that 

conviction. In 1999, Boyce filed a 28 U.S.C. § 2255 habeas motion, which was 

dismissed. Boyce then unsuccessfully attempted to challenge the validity of his 

underlying conviction via a § 2241 petition filed in the U.S. District Court for the District 

of Colorado, which was dismissed in 2001. And, in 2005, the Eleventh Circuit denied 

Boyce’s motion for permission to file a second or successive § 2255 motion based on 

evidence Boyce claimed to have newly discovered. 

Most recently, Boyce filed, through counsel, a § 2241 petition in the U.S. District 

Court for the District of Colorado. The district court dismissed the petition, concluding 

that Boyce had an adequate and effective remedy available in the sentencing court, and 

the existence of such a remedy deprived it of jurisdiction. Boyce timely appealed. 

II 

 We review the denial of § 2241 relief de novo. Bradshaw v. Story, 86 F.3d 164, 

166 (10th Cir. 1996). A proper § 2241 petition attacks the execution of a sentence and 

must be filed where a prisoner is confined. Bradshaw, 86 F.3d at 166. A § 2255 motion, 

in contrast, attacks the underlying legality of the detention itself and must be filed in the 

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sentencing court. Bradshaw, 86 F.3d at 166. “The exclusive remedy for testing the 

validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided 

for in 28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see also 

28 U.S.C. § 2255(e). Boyce bears the burden of showing that his remedy under § 2255 is 

inadequate or ineffective. Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011). 

“Failure to obtain relief under § 2255 does not establish that the remedy so provided is 

either inadequate or ineffective.” Williams v. United States, 323 F.2d 672, 673 (10th Cir. 

1963) (quotation omitted). “Only in rare instances will § 2255 fail as an adequate or 

effective remedy to challenge a conviction or the sentence imposed.” Sines v. Wilner, 

609 F.3d 1070, 1073 (10th Cir. 2010). 

 On appeal, Boyce contends that he is actually innocent. However, Boyce’s 

briefing fails to explain how his asserted innocence entitles him to a remedy under 

§ 2241. Our circuit precedent makes “a showing of actual innocence . . . irrelevant” to 

whether a remedy under § 2255 is inadequate or ineffective. Abernathy v. Wandes, 713 

F.3d 538, 546 n.7 (10th Cir. 2013), cert. denied sub nom. Abernathy v. Cozza-Rhodes, 

134 S. Ct. 1874 (2014). Rather, a remedy under § 2255 is adequate or effective as long 

as the movant’s “argument challenging the legality of his detention could have been 

tested in an initial § 2255 motion.” Id. at 547 (quotation omitted). 

 Boyce claims that he could not have raised his actual innocence claim in his initial 

habeas proceeding because he did not have access to a recent “confession” in which the 

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prisoner whom Boyce was convicted of aiding and abetting—and who was convicted of 

the murder at issue—denies that Boyce was involved in the murder. However, under 

Abernathy, we do not look to the “the likelihood of success” of a claim; the “inadequate 

or ineffective” test “doesn’t guarantee results, only process.” Id. at 548 (quotation 

omitted). A remedy is available under § 2241 only if a claim procedurally could not have 

been raised at all via § 2255, such as when the original sentencing court has been 

dissolved or is unresponsive. See Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 

1999). 

 The proper procedure for a federal prisoner who claims newly discovered 

evidence demonstrates his innocence is to seek permission to file a second or successive 

§ 2255 motion in the sentencing court. See § 2255(h). Boyce notes various issues—

including availability of counsel and time constraints—that would make it more difficult 

for him to prevail in the sentencing jurisdiction. But again, the likelihood of success does 

not factor into our “inadequate or ineffective” analysis. See Abernathy, 713 F.3d at 548. 

Boyce also suggests that the Supreme Court’s decision in McQuiggin v. Perkins, 133 S. 

Ct. 1924 (2013), allows him to proceed under § 2241 based on his assertion of actual 

innocence. He is incorrect. Perkins discusses an actual innocence “gateway” via which 

a prisoner may overcome procedural or time bars in an initial habeas proceeding. See 

133 S. Ct. at 1928, 1934. The Perkins Court explicitly noted the different rules that apply 

to a second or successive case. Id. at 1933-34 (distinguishing between the heightened 

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requirements for second or successive claims and the miscarriage of justice exception 

applicable to initial habeas claims). 

 Finally, Boyce argues that the district court should have transferred his case to the 

original sentencing court. However, to proceed on a second or successive claim in that 

court, he must first obtain authorization from the Eleventh Circuit. See § 2255(h). Such 

a request for authorization is the appropriate place for Boyce to advance the substantive 

claims of error related to his original conviction that he attempts to advance via § 2241. 

III 

AFFIRMED.

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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