FILED

United States Court of Appeals

Tenth Circuit

August 2, 2022

Christopher M. Wolpert

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER WILLS,

Petitioner - Appellant,

v.

J.A. BARNHART,

Respondent - Appellee.

No. 20-1418

(D.C. No. 1:20-CV-02115-LTB-GPG

(D. Colo.)

ORDER AND JUDGMENT

*

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

Petitioner-Appellant Christopher Wills, proceeding pro se,

1

appeals from

the district court’s dismissal of his petition for a writ of habeas corpus pursuant to

* This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate

Procedure 32.1(a) and Tenth Circuit Rule 32.1(A). After examining the briefs

and appellate 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.

1 Because Mr. Wills is proceeding pro se, we construe his filings

liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but “we will

not ‘assume the role of advocate.’” United States v. Parker, 720 F.3d 781, 784

n.1 (10th Cir. 2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.

2008)).

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28 U.S.C. § 2241. Mr. Wills argues that the district court erred in denying his

petition for lack of jurisdiction. He also renews his motion to proceed in forma

pauperis on appeal.

Because Mr. Wills has not shown that 28 U.S.C. § 2255 provides an

ineffective or inadequate remedy for his claim, as required to challenge the legality

of detention under 28 U.S.C. § 2241, we affirm the district court’s judgment.

However, because of Mr. Wills’s demonstrated need and the rational basis behind his

argument, we grant his motion to proceed in forma pauperis.

I

Mr. Wills is a federal prisoner in Florence, Colorado serving a life sentence

without the possibility of parole. A jury convicted Mr. Wills of using a false job

opportunity to lure a man, Zabiuflah Alam, from Washington, D.C. to Fairfax

County, Virginia, and then murdering him to prevent him from testifying as a

witness against Mr. Wills in a burglary case. Specifically, after Mr. Alam

testified against Mr. Wills at a preliminary hearing in a burglary case, Mr. Wills

placed a job flyer advertising a groundskeeping job under Mr. Alam’s door.

When Mr. Alam called the number on the flyer, he was told to meet someone for a

job interview at Union Station in Fairfax County, Virginia. Mr. Alam was never

seen or heard from again.

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In February 2000, a grand jury charged Mr. Wills with kidnapping resulting

in death in violation of the Federal Kidnapping Act, 18 U.S.C. § 1201(a)(1), and

interstate stalking resulting in death in violation of 18 U.S.C. § 2261A. Prior to

trial, Mr. Wills argued that the jurisdictional requirement of the Federal

Kidnapping Act could not be established when the victim transports himself

across state lines without accompaniment by the alleged perpetrator. The district

court agreed with Mr. Wills and dismissed his indictment. See United States v.

Wills (Wills I), 234 F.3d 174, 176 (4th Cir. 2000), cert. denied, 533 U.S. 953

(2001). On appeal, the Fourth Circuit reversed and held that Mr. Wills’s conduct

in causing Mr. Alam to travel unaccompanied across state lines sufficed to confer

jurisdiction under § 1201(a)(1). See id. Specifically, it explained that “[t]he

plain language of the [Federal Kidnapping] Act does not require that the

defendant accompany, physically transport, or provide for the physical

transportation of the victim. Rather the Act only requires that the victim ‘is

willfully transported.’” Id. at 178. On remand, in 2001, the jury convicted Mr.

Wills of both charged offenses. Subsequently, the district court sentenced Mr.

Wills to life in prison without parole.

A slew of direct and collateral challenges to Mr. Wills’s conviction and

sentence followed. The Fourth Circuit affirmed his conviction and sentence on

direct appeal. In doing so, the Fourth Circuit expressly adhered to its prior

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decision that “the fact that [Mr.] Wills caused unaccompanied travel over state

lines [was] sufficient to confer jurisdiction” under the Federal Kidnapping Act.

United States v. Wills (Wills II), 346 F.3d 476, 487 (4th Cir. 2003) (alteration in

original) (quoting Wills I, 234 F.3d at 179), cert. denied, 542 U.S. 939 (2004). In

2005, Mr. Wills sought postconviction relief pursuant to 28 U.S.C.

§ 2255—alleging, among other things, that the government violated his Sixth

Amendment right to effective assistance of counsel and his Sixth Amendment

right to confront the witnesses against him. See Wills v. United States (Wills III),

No. 1:05-CV-775, 2006 WL 680999, *1 (E.D. Va. Mar. 16, 2006) (unpublished).

The district court denied his petition, and the Fourth Circuit subsequently denied

his request for a certificate of appealability. See United States v. Wills (Wills IV),

224 F. App’x 240, 241 (4th Cir. 2007) (per curiam) (unpublished). Later, on July

10, 2020, the Fourth Circuit denied Mr. Wills’s motion for an order authorizing

the district court to consider a second or successive § 2255 motion. See United

States v. Wills (Wills VI), No. 20-313 (4th Cir. July 10, 2020), ECF No. 9.

Previously, Mr. Wills had filed an application for relief under 28 U.S.C.

§ 2241, again claiming that his conduct did not satisfy the jurisdictional element

of the Federal Kidnapping Act because he did not accompany his victim across

state lines. In 2007, the United States District Court for the Middle District of

Pennsylvania construed Mr. Wills’s petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2241 as a successive § 2255 motion and dismissed for lack of

jurisdiction. See Wills v. United States (Wills V), 361 F. App’x 302, 303 (3d Cir.

2010) (per curiam) (unpublished). The Third Circuit dismissed Mr. Wills’s

subsequent appeal as untimely. Id.

In 2009, Mr. Wills filed another § 2241 petition in the Middle District of

Pennsylvania, again arguing that his conduct failed to satisfy the jurisdictional

element of the Federal Kidnapping Act because he had not crossed state lines with

the victim. Id. This time, he also argued that a 2006 amendment to the Federal

Kidnapping Act expanded jurisdiction to reach his conduct for the first time. Id.

Once more, the district court disagreed that Mr. Wills could seek relief under §

2241 and dismissed his petition for lack of jurisdiction, and the Third Circuit

affirmed. Id. at 303–04.

In 2020, Mr. Wills filed the present § 2241 petition in the District of

Colorado, contending that the 2006 statutory amendments

2

to 18 U.S.C.

2 The statute in effect at the time of Mr. Wills’s offense defined

kidnapping as:

(a) Whoever unlawfully seizes, confines, inveigles, decoys,

kidnaps, abducts, or carries away and holds for ransom or reward

or otherwise any person . . . when (1) the person is willfully

transported in interstate or foreign commerce . . . .

18 U.S.C. § 1201(a)(1) (1998).

(continued...)

5

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§ 1201(a)(1), and also to 18 U.S.C. § 2261A, prove that at the time of his

conviction, his conduct had not satisfied the jurisdictional requirement that he

cross state lines in connection with his criminal activity.

3

The district court, adopting the magistrate judge’s recommendation,

dismissed the petition without prejudice; it explained that it did not have statutory

jurisdiction because Mr. Wills failed to show the inadequacy or ineffectiveness of

2

(...continued)

As amended in 2006, the statute defines kidnapping as:

(a) Whoever unlawfully seizes, confines, inveigles, decoys,

kidnaps, abducts, or carries away and holds for ransom or reward

or otherwise any person . . . when (1) the person is willfully

transported in interstate or foreign commerce, regardless of

whether the person was alive when transported across a State

boundary, or the offender travels in interstate or foreign

commerce or uses the mail or any means, facility, or

instrumentality of interstate or foreign commerce in committing

or in furtherance of the commission of the offense.

18 U.S.C. § 1201(a)(1) (2006) (emphasis added).

3 Mr. Wills fails to cite or describe the relevant amendments to 18

U.S.C. § 2261A. Based on review of the statute’s history, however, as relevant

here, it appears the statute previously provided that an individual who “uses the

mail or any facility of interstate or foreign commerce” may be held liable for

stalking. 18 U.S.C. § 2261A(2) (1998). As amended in 2006, the statute

expanded that provision to include any individual who “uses the mail, any

interactive computer service, or any facility of interstate or foreign commerce.”

18 U.S.C. § 2261A(2) (2006) (emphasis added). Unlike the 2006 Federal

Kidnapping Act amendment, it is unclear why the former version would not apply

to Mr. Wills but the latter would. However, we need not (and do not) resolve this

issue, as we dismiss Mr. Wills’s appeal for failure to show the inadequacy or

ineffectiveness of the remedy provided under 28 U.S.C. § 2255.

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the remedy provided under 28 U.S.C. § 2255. Additionally, the district court

denied Mr. Wills leave to proceed in forma pauperis on appeal, certifying that an

appeal would not be taken in good faith. This appeal and renewed motion to

proceed in forma pauperis followed.

II

A

Mr. Wills’s notice of appeal must be timely for us to exercise jurisdiction

over his claim. United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th

Cir. 2004) (mem.) (“The filing of a timely notice of appeal is an absolute

prerequisite to our jurisdiction.” (quoting Parker v. Bd. of Pub. Utils., 77 F.3d

1289, 1290 (10th Cir. 1996))). The deadline for Mr. Wills’s notice of appeal was

November 16, 2020, i.e., sixty days after the district court’s entry of judgment on

September 17, 2020. See FED. R. APP. P. 4(a)(1)(B)(i)–(iv) (providing a sixty-day

filing period for a notice of appeal when the government is a party to the

proceeding). The notice of appeal itself and its cover letter are dated November

15, 2020—one day in advance of the deadline. However, the notice was not filed

with the court until November 23, 2020. Additionally, the envelope in which the

notice was sent was postmarked on November 19, 2020, and contained a date

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stamp of “November 18, 2020,” and a handwritten notation of “November 17,

2020.” R. at 90.

Our Court Clerk’s Office issued an order to show cause to Mr. Wills, aimed

at ultimately assessing whether he could demonstrate timely filing of the notice of

appeal. In his supplemental filing and accompanying declaration, Mr. Wills does

not dispute that his notice of appeal was filed after the deadline. However, Mr.

Wills states that he gave the notice of appeal to prison staff in advance of the

deadline, on November 15, 2020. He asks us to apply the prison mailbox rule

and, consequently, to conclude that his notice of appeal was timely filed. He also

describes the delays in mail processing related to the COVID-19 pandemic that

have been occurring at his prison. Finally, Mr. Wills claims that he attempted to

obtain a copy of the prison mail log, but his request was denied by prison staff.

The jurisdictional question was referred to this merits panel for plenary

consideration. We resolve this question in Mr. Wills’s favor.

Under the prison mailbox rule, under specified conditions, “a pro se

prisoner’s notice of appeal will be considered timely if [it is] given to prison

officials for mailing prior to the filing deadline, regardless of when the court

itself receives the documents.” Price v. Philpot, 420 F.3d 1158, 1163–64 (10th

Cir. 2005); see FED. R. APP. P. 4(c)(1). “This special exception is rooted in the

reality that, unlike other litigants, prisoners do not have the opportunity to

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oversee the delivery process personally and should not be penalized for any delay

in the prison’s mail processing systems.” Blake v. Aramark Corp., 489 F. App’x

267, 268 (10th Cir. 2012) (unpublished) (citing Houston v. Lack, 487 U.S. 266,

270–71 (1988)).

Mr. Wills bears the burden of establishing compliance with the prison

mailbox rule. Price, 420 F.3d at 1165. There are two ways he can do so. First,

he can “alleg[e] and prov[e] that he . . . made timely use of the prison’s legal

mail system if a satisfactory system is available.” Id. at 1166. “[I]f the prison

has a legal mail system, then the prisoner must use it as the means of proving

compliance with the mailbox rule.” Ceballos-Martinez, 387 F.3d at 1144; see

also FED. R. APP. P. 4(c)(1) (“If an institution has a system designed for legal

mail, the inmate must use that system to receive the benefit of [the prison mailbox

rule].”); United States v. Leonard, 937 F.2d 494, 495 (10th Cir. 1991) (holding

that where a prison maintains a legal mail system separate from its regular mail

system, a prisoner must use the legal mail system to be entitled to the benefit of

the mailbox rule). Second, when an “inmate does not have access to a legal mail

system—or if the existing legal mail system is inadequate to satisfy the mailbox

rule”—then the inmate must prove adherence to the rule through “a declaration

[in compliance with 28 U.S.C. §1746] or notarized statement setting forth the

notice [of appeal]’s date of deposit with prison officials and attest[ing] that first9

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class postage was pre-paid.” Price, 420 F.3d at 1165 (first alteration in original)

(quoting Ceballos-Martinez, 387 F.3d at 1145).

We hold that Mr. Wills’s appeal is timely under the prison mailbox rule.

As described above, in response to our show cause order, Mr. Wills submitted a

declaration stating under penalty of perjury that he gave the notice of appeal, in

an envelope with postage prepaid, to a prison official on November 15, 2020.

The notice of appeal itself and accompanying cover letter are also dated

November 15, 2020, corroborating Mr. Wills’s account. Further, according to Mr.

Wills’s declaration he specifically requested that the notice of appeal be sent

through the prison’s legal mail system. The contents of Mr. Wills’s declaration

suffice to show that his notice of appeal was timely under the prison mailbox rule.

See Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1350–51 (10th Cir.

2017) (deeming notice of appeal timely under prison mailbox rule based on

declaration stating under penalty of perjury that inmate’s notice of appeal was

placed as legal mail in the prison mail drop by the filing deadline with postage

prepaid); Quintana v. Trani, 820 F. App’x 727, 730 (10th Cir. 2020)

(unpublished) (same).

4

4 Although Mr. Wills’s declaration does not specifically state that firstclass postage was prepaid, first-class postage is affixed to the envelope

containing the appeal. See R. at 90. Construing Mr. Wills’s submissions

liberally, we find that this omission does not deprive us of jurisdiction. See

(continued...)

10

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In so concluding, we decline to rely on the dates on the envelope containing

the notice of appeal—a handwritten notation of November 17, 2020, a date stamp

of November 18, 2020,

5

and a postmark of November 19, 2020—any of which, if

credited as the relevant date, would render Mr. Wills’s notice of appeal untimely.

In short, these do not contradict Mr. Wills’s account as set forth in his

declaration. The prison mailbox rule turns on when the document was placed in

the custody of a prison official for mailing. See Houston, 487 U.S. at 275

(“[M]aking filing turn on the date the pro se prisoner delivers the notice to prison

authorities for mailing is a bright-line rule, not an uncertain one.” (emphasis

added)); Price, 420 F.3d at 1165 (under the prison mailbox rule, a prisoner must

“establish the date on which he or she gave the papers to be filed with the court to

a prison official”); see also United States v. Gray, 182 F.3d 762, 766 (10th Cir.

1999) (noting that date on which envelope was mailed from the institution “does

not necessarily indicate the date on which legal mail is presented to prison

4

(...continued)

Christmas v. Oklahoma, 290 F. App’x 126, 129 (10th Cir. 2008) (unpublished)

(applying prison mailbox rule, notwithstanding the fact that inmate failed to

specifically state that “first-class postage was prepaid,” where information was

included elsewhere in inmate’s submission).

5 The date stamp appears to be part of an official prison stamp

designating the envelope and its contents as legal mail. Although the contents of

the stamp are largely illegible except for the date, see R. at 90, legal mail stamps

containing an identical “date” line appear on each of the envelopes containing Mr.

Wills’s previous court filings, see, e.g., R. at 36, 63, 83.

11

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authorities, which is the pertinent information with respect to the mailbox rule”);

cf. Davis v. Woodford, 446 F.3d 957, 960 (9th Cir. 2006) (“The fact that the

prison log shows that the mail was sent on January 7 is not inconsistent with its

having been deposited on December 31.”).

The November 19 postmark on the envelope is not inconsistent with Mr.

Wills’s statement that he delivered the notice of appeal to prison staff on

November 15, 2020. See, e.g., Gray, 182 F.3d at 766 (determining that motion

was timely under the prison mailbox rule, notwithstanding postmark on envelope

dated five days after the filing deadline). Further, the significance of the

handwritten date and date stamp on the envelope are unclear from the record. But

neither they nor anything else in the record contradict the content of Mr. Wills’s

declaration. Consequently, relying on Mr. Wills’s declaration, we accept

November 15, 2020, as the date on which Mr. Wills provided the notice of appeal

to the prison for mailing. Accordingly, Mr. Wills’s appeal is timely under the

prison mailbox rule.

6

B

6 Because we deem Mr. Wills’s notice of appeal timely, we need not

address his request for a hearing and issuance of subpoenas to access the prison’s

legal mail log.

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We turn, then, to Mr. Wills’s central argument: that the district court erred

in denying his § 2241 petition for lack of jurisdiction. Our review of this legal

question is de novo. Hale v. Fox, 829 F.3d 1162, 1170 (10th Cir. 2016).

7

Habeas petitions under 28 U.S.C. § 2241 and habeas petitions (i.e.,

motions) under 28 U.S.C. § 2255 typically serve distinct purposes: “[a] petition

under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its

validity,” while “[a] 28 U.S.C. § 2255 petition attacks the legality of detention.”

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); see also Prost v. Anderson,

636 F.3d 578, 581 (10th Cir. 2011) (“Congress long ago decided that a federal

prisoner’s attempt to attack the legality of his conviction or sentence generally

must be brought under § 2255,” and, by contrast, “§ 2241 petitions . . . are

generally reserved for complaints about the nature of a prisoner’s confinement,

not the fact of his confinement.”).

7 Because Mr. Wills is a federal prisoner proceeding (at least

nominally) under 28 U.S.C. § 2241, we may turn to the merits without

determining whether a certificate of appealability (COA) should be granted. See

Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (“[A] federal prisoner

proceeding under § 2241 does not need a certificate of appealability to appeal a

district court’s denial of the petition.”); McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 810 n.1 (10th Cir. 1997) (“[A] certificate of appealability under the

Antiterrorism and Effective Death Penalty Act of 1996 . . . is not required in

order to appeal a final order in a proceeding under 28 U.S.C. § 2241.”). The

district court denied Mr. Wills a COA when it dismissed his petition. However,

under the governing law that we have just outlined, the court’s denial of a COA

has no effect on our resolution of this appeal.

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However, under the narrow “savings clause” of § 2255(e), a federal

prisoner may resort to § 2241 to challenge the legality of his detention, not just

the nature of his confinement, where “the remedy by motion [under § 2255] is

inadequate or ineffective to test the legality of his detention.” 28 U.S.C.

§ 2255(e). Mr. Wills bears the burden of demonstrating that the remedy available

pursuant to § 2255 is inadequate or ineffective. See Prost, 636 F.3d at 584. He

fails to satisfy this burden.

The touchstone inquiry to determine whether § 2255 provides Mr. Wills

with an inadequate or ineffective remedy is “whether [his] argument challenging

the legality of his detention could have been tested in [his] initial § 2255 motion.”

Id. “If the answer is yes, then the petitioner may not resort to the savings clause

[in § 2255(e)] and § 2241.” Id. That a procedural bar or low likelihood of

success makes a § 2255 remedy extremely unlikely does not suffice under this

test. The opportunity to seek a § 2255 remedy must be “genuinely absent” before

a federal prisoner may challenge his conviction or sentence in a § 2241

application. Id. at 588. It ineluctably follows that “[o]nly 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); see

also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (noting that the

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remedy available pursuant to § 2255 is inadequate or ineffective only in

“extremely limited circumstances”).

Bearing these principles in mind, we conclude that Mr. Wills fails to

demonstrate that the § 2255 remedy is inadequate or ineffective. First, Mr. Wills

not only could have, but did in fact, challenge the legality of his detention

through a § 2255 petition, which was denied. “Any argument that this denial was

erroneous ‘does not render the procedural mechanism Congress provided for

bringing that claim . . . an inadequate or ineffective remedial vehicle for testing

[the claim’s] merits within the plain meaning of the savings clause.’” Dembry v.

Hudson, 796 F. App’x 972, 975 (10th Cir. 2019) (unpublished) (quoting Prost,

636 F.3d at 590). Put otherwise, that Wills previously was denied relief pursuant

to § 2255 does not show the genuine absence of a remedy under § 2255; to the

contrary, it demonstrates that Mr. Wills had the opportunity to test his principal

argument through the proper vehicle of a § 2255 motion. See Bradshaw, 86 F.3d

at 166 (“Failure to obtain relief under 2255 does not establish that the remedy so

provided is either inadequate or ineffective.” (quoting Williams v. United States,

323 F.2d 672, 673 (10th Cir. 1963))); Prost, 636 F.3d at 589 (“[I]t is the infirmity

of the § 2255 remedy itself, not the failure to . . . prevail under it, that is

determinative.”).

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Furthermore, that the 2006 statutory amendments did not exist when Mr.

Wills “initially filed his § 2255 motion or that adverse circuit precedent existed at

the time does not render § 2255’s procedure ineffective or inadequate.” Dembry,

796 F. App’x at 975 (emphasis added); see Prost, 636 F.3d at 589–90 (rejecting

petitioner’s argument that he should be permitted to advance novel statutory

interpretation theory bearing on his conviction through a § 2241 motion after

failing to do so in his initial § 2255 proceeding). Our analysis in Lewis v. Eng.

applies equally here:

[Petitioner] argues that the savings clause applies because his .

. . argument [based on the Supreme Court’s decision in Mathis v.

United States, 136 S. Ct. 2243 (2016)] was unavailable to him

when he filed his initial § 2255 motion. Thus, the only way

[petitioner] could’ve prevailed under § 2255 is if he anticipated

Mathis, argued it in the face of conflicting Fifth Circuit

precedent, secured a writ of certiorari or en banc review, and

convinced the Supreme Court or en banc Fifth Circuit that his

position was correct. We don’t doubt that this would have been

an uphill battle; but [petitioner] at least had the opportunity to

take this path. And Prost makes clear that this opportunity—as

unlikely as success might have been—forecloses our application

of § 2255(e)’s savings clause.

736 F. App’x 749, 752 (10th Cir. 2018) (unpublished); see also Kirkland v. Eng.,

757 F. App’x 640, 643 (10th Cir. 2018) (unpublished) (holding that “[petitioner]

cannot seek relief under § 2241 because he ‘was entirely free to raise and test’”

an argument applying the logic of subsequently issued Supreme Court decisions

“in his initial § 2255 motion” (quoting Prost, 636 F.3d at 590)).

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Relatedly, “the mere fact [Mr. Wills] is precluded [by the provisions of 28

U.S.C. § 2255(h)] from filing a second § 2255 petition” discussing the statutory

amendments does not demonstrate that the initial remedy provided under § 2255

is inadequate or unavailable. See Caravalho, 177 F.3d at 1179. Congress

expressly limited the availability of second or successive § 2255 motions to “only

certain claims it has deemed particularly important”—those involving either

newly discovered evidence strongly suggestive of innocence or new rules of

constitutional law made retroactive by the Supreme Court.

8 Prost, 636 F.3d at

583–84 (citing 28 U.S.C. § 2255(h)). In so doing, “Congress chose to preclude

petitioners from raising . . . statutory innocence claims—among many other kinds

of claims—in second or successive § 2255 motions.”

9 Prost, 636 F.3d at 586.

Permitting a second challenge under § 2241 in circumstances not contained in §

2255(h) would render that subsection’s limitations “effectively pointless.” Id.

8 Mr. Wills does not, and cannot, argue that his claim implicates either

exception of 28 U.S.C. § 2255(h).

9 Accordingly, insofar as Mr. Wills argues his “actual innocence”

based on the 2006 statutory amendments as a basis for § 2241 review, Prost

counsels that his argument is of no moment. And we repeatedly have followed

Prost’s logic. See Hale, 829 F.3d at 1171 (“[Petitioner’s] attempt to bypass

§ 2255(e) and obtain § 2241 review by labeling his claim one of ‘actual

innocence’ does not change the analysis.”); Dembry, 796 F. App’x at 974–75

(rejecting petitioner’s claim that § 2241 review was warranted based on “actual

innocence,” as evidenced by the Supreme Court’s statutory interpretation decision

issued after the petitioner’s initial § 2255 application).

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Although Mr. Wills “suggests there is something unusual about barring a

claim that rests on a correct and previously foreclosed” statutory amendment, “the

fact is that many other provisions of AEDPA limit the ability of prisoners to reap

the benefit of unforeseeable but helpful new legal developments.” See id. at 591.

Indeed, in Prost, we explained that, in § 2255, Congress “fully intended . . . to

bar otherwise meritorious successive petitions” based on “novel statutory

interpretations” in successive § 2255 motions. Id. at 589. And, under this

principle, we rejected a prisoner’s argument that he should be able to pursue an

actual innocence argument under § 2241 based on a newly available statutory

interpretation from the Supreme Court, notwithstanding the fact that the

interpretation was not legally viable at the time of his initial § 2255 petition. Id.

Likewise, in Brace v. United States, 634 F.3d 1167 (10th Cir. 2011), we

again rejected the argument that claims of actual innocence based on a new

statutory interpretation can be pursued under § 2241. Id. at 1170 (observing that

Prost foreclosed petitioner’s argument). Here too, even if the 2006 statutory

amendments support Mr. Wills’s interpretation, we still are bound to respect

Congress’s “considered view” that “finality concerns now predominate and

preclude relitigation of [Mr. Wills’s] criminal judgment.” Prost, 636 F.3d at 588.

Finally, Mr. Wills points to the Second and Third Circuits’ holdings that a

petitioner may invoke § 2241 “when the application of § 2255(h)’s bar against a

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second or successive motion for collateral review would seriously threaten to

render the § 2255 remedial process unconstitutional.” Id. at 593 (citing

Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997), and In re

Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997)). Mr. Wills correctly observes that

the Prost court left open the question of “whether, when, and how the application

of § 2255(h)’s limits on second or successive motions might (ever) raise a serious

constitutional question.” Id. at 594. But he fails to specifically explain how

denying access to § 2241 would present constitutional issues in this case, “or even

identify what provision of the Constitution he thinks would be offended by the

imposition of § 2255(h)’s bar in his case.” Id. Accordingly, we decline to

consider this argument further as a possible basis for reversing the district court’s

judgment.

10

See Hale, 829 F.3d at 1176–77 (affirming dismissal of a § 2241

10 Notably, Mr. Wills’s requests appointment of counsel so that the

Tenth Circuit can “decide once and for all whether the savings clause of § 2255

may be used to allow § 2241 redress . . . where the claim is one of ‘actual

innocence,’ based on a new statutory change and interpretation, and where failure

to allow such redress might raise perilous constitutional questions with regards to

the application of § 2255(h).” Aplt.’s Opening Br. at 37. At the outset, we

observe that there is no constitutional right to counsel in post-conviction

proceedings. See Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008). In

rare instances, the Court may appoint counsel for a financially eligible person

“seeking relief under section 2241, 2254, or 2255 of title 28,” if “the interests of

justice so require.” 18 U.S.C. § 3006A(a)(2)(B). However, in light of our

ultimate disposition of this action, infra—affirming the district court’s dismissal

order—we deem Mr. Wills’s request at this juncture to be effectively moot. See

Milton v. Daniels, 521 F. App’x 664, 669 n.5 (10th Cir. 2013) (unpublished)

(continued...)

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petition because the petitioner failed to show why his case “raises serious

constitutional concerns”).

At bottom, Mr. Wills has not shown that he was unable to test his claim in

his initial § 2255 motion. As such, he has failed to prove that § 2255’s remedy is

inadequate or ineffective to address his claim. Consequently, we uphold the

district court’s decision that he is barred from pursuing his claim under § 2241.

See, e.g., Bradshaw, 86 F.3d at 167 (declining to exercise jurisdiction over a

petitioner’s § 2241 motion because he “provides insufficient evidence that relief

is unavailable to him under a properly filed § 2255 motion”); Brace, 634 F.3d at

1170 (affirming the district court’s dismissal of a petitioner’s § 2241 petition

10

(...continued)

(affirming the district court’s dismissal of § 2241 petition for lack of jurisdiction

and denying petitioner’s motion for appointment of counsel as moot).

Furthermore, the most appropriate setting for Mr. Wills to have first raised the

subject of appointment counsel was in the district court; it was there that Mr.

Wills was obliged in the first instance to fully articulate his grounds for relief

including regarding any constitutional issues that his § 2241 action ostensibly may

be implicate. But Mr. Wills does not contend that he moved for appointment of

counsel in the district court and was wrongly denied such relief, and therefore he

has waived any contention of error to this effect. See, e.g., Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider

arguments that are not raised, or are inadequately presented, in an appellant's

opening brief.”). Lastly, as we have seen, Mr. Wills has not even traced the

outline of the constitutional question that he suggests is implicated here;

consequently, he has not persuaded us—in any event—that the interests of justice

would require appointing him counsel. Cf., e.g., Williams v. Meese, 926 F.2d 994,

996 (10th Cir. 1991) (“In determining whether to appoint counsel, the district

court should consider a variety of factors, including the merits of the litigant’s

claims . . . .”).

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because he did “not demonstrate[ ] that § 2255 is an inadequate or ineffective

remedy”).

C

Finally, notwithstanding our dismissal of the appeal, we must address Mr.

Wills’s motion for leave to proceed in forma pauperis. See McIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). To proceed in forma

pauperis, Mr. Wills must demonstrate “a financial inability to pay the required

[filing] fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d

624, 627 (10th Cir. 2008) (alteration in original) (quoting McIntosh, 115 F.3d at

812). Though a prisoner’s argument must not be frivolous, it need not be

particularly well-crafted for the prisoner to proceed in forma pauperis. See

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (granting a motion

for leave to proceed in forma pauperis where “[the] appellant can make a rational

argument on the law or facts in support of the issues raised on appeal”).

Mr. Wills satisfies this in forma pauperis standard. He lacks the financial

ability to pay the $505 filing fee. In this regard, Mr. Wills has been imprisoned

for over twenty years, has an average monthly gross income of $50 per month,

and no savings or other assets. Moreover, Mr. Wills’s arguments—although

erroneous—are expressed in an analytically reasonable manner and apply law to

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facts. Consequently, we grant leave to proceed in forma pauperis. See, e.g.,

Perko v. United States, 166 F.3d 1221 (10th Cir. 1999) (unpublished table

decision) (granting leave to proceed in forma pauperis, notwithstanding the

court’s denial of petitioner’s § 2241 habeas corpus petition because § 2255

provided an adequate and effective remedy); Moreno v. Cozza-Rhodes, 514 F.

App’x 746, 747 (10th Cir. 2013) (unpublished) (same).

III

For the foregoing reasons, we AFFIRM the district court’s order denying

Mr. Wills’s petition for a writ of habeas corpus under 28 U.S.C. § 2241 and

GRANT Mr. Wills’s motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Jerome A. Holmes

Circuit Judge

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