2241 Petitioner Should Have Tried, Tried Again

Abernathy v. Wandes, --- F.3d ----, 2013 WL 1397270 (10th Cir. 4/8/13) (Colo.) - A difficult habeas decision: the Tenth decides the district court properly dismissed Mr. Abernathy's § 2241 petition for lack of jurisdiction. Mr. Abernathy was convicted in 2001 of felon in possession and sentenced under ACCA. One of his qualifying ACCA convictions was for a "walkaway" escape. Under Chambers v. US, 555 U.S. 122 (2009), an escape conviction for a walkaway is not a violent felony under ACCA. Mr. Abernathy had argued on direct appeal that his walkaway conviction did not qualify under ACCA. He lost. He sought cert and was denied. He filed a § 2255 raising other issues that were denied. Mr. Abernathy maintained that he should be permitted to proceed under § 2241 because the law changed after he was sentenced and he could not get the benefit of the change under § 2255 because Chambers did not create a new rule of constitutional law that the Supreme Court made retroactive. Under the "savings clause" of § 2255(e), a federal prisoner can proceed under § 2241 when the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." Mr. Abernathy pointed out that under the law-of-the-case doctrine, he was foreclosed from raising his Chambers argument in his initial § 2255 proceeding because he had already raised it on direct appeal and thus he had no adequate or effective remedy under § 2255. Too bad, says the Tenth; he could still have raised the argument and hoped for a Supreme Court cert grant. The COA quotes from its prior Prost decision to the effect that: "The U.S. Reports are, after all, replete with instances where the Supreme Court has rewarded litigants who took the trouble to challenge adverse circuit precedent." The Court also rejects Mr. Abernathy's argument that denying him the opportunity to seek § 2241 relief would effectively suspend his right to seek a writ of habeas corpus in violation of the Constitution's Suspension Clause. ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." US Const. art. I, § 9, cl. 2). That argument was not raised below and because there is a lack of well-settled law on this issue, Mr. Abernathy can't meet the plain error test.