FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 17, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court ZACK ZAFER DYAB,
Petitioner - Appellant, No. 19-3010 v. (D.C. No. 5:18-CV-03290-JWL) (D. Kan.) NICOLE ENGLISH, Warden,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.** _________________________________
In 2010, Petitioner Zack Zafer Dyab, a federal prisoner proceeding pro se,
pleaded guilty to money laundering in violation of 18 U.S.C. § 1957 and conspiracy
to commit wire fraud in violation of 18 U.S.C. § 371. He has since filed three
unsuccessful motions for post-conviction relief under 28 U.S.C. § 2255. Undeterred,
he now turns to another statute—28 U.S.C. § 2241—in an effort to seek post-
conviction relief a fourth time. But unfortunately for Petitioner, the district court
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. correctly determined that it lacked statutory jurisdiction to adjudicate his § 2241
petition, and so we must affirm its order dismissing his petition on that basis.
To understand why, first consider that federal prisoners like Petitioner can’t
simply turn to § 2241 as a matter of choice when collaterally attacking their
convictions or sentences. That statute is “generally reserved for complaints about the
nature of a prisoner’s confinement”—i.e., the conditions of his confinement—“not
the fact of his confinement.” Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)
(emphases in original). For that reason, federal prisoners must generally utilize
§ 2255 if they hope “to attack the legality of [their] conviction[s] or sentence[s].” Id.
Indeed, through § 2255, “Congress has chosen to afford every federal prisoner the
opportunity to launch at least one collateral attack to any aspect of his conviction or
sentence.” Id. at 583.
The problem many of those prisoners face, however, is that § 2255 heavily
constrains the instances in which they can file “second or successive” collateral
attacks on their convictions or sentences. 28 U.S.C. § 2255(h). To get that extra bite
at the apple, a federal prisoner’s claim must involve “either newly discovered
evidence strongly suggestive of innocence or new rules of constitutional law made
retroactive by the Supreme Court.” Prost, 636 F.3d at 581; see also 28 U.S.C.
§ 2255(h). Absent one of those two narrow circumstances, the federal prisoner is
almost always unable to move forward on his or her additional request for relief.
“Yet, even here Congress has provided an out.” Prost, 636 F.3d at 584. A
federal prisoner can bypass the stringent requirements on second or successive
2 motions if he can establish that § 2255 “is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e). Under this “savings clause,” which
applies in only “extremely limited circumstances,” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999), “a prisoner may bring a second or successive attack on
his conviction or sentence under 28 U.S.C. § 2241, without reference to § 2255(h)’s
restrictions.” Prost, 636 F.3d at 584. In such a scenario, § 2241 shifts gears from its
usual function and “allows a federal prisoner . . . to challenge the legality of his
detention, not just the conditions of his confinement.” Id. at 581.
Petitioner’s desire to utilize § 2241 this fourth time around stems from this
savings clause. Specifically, Petitioner claims that his conviction and sentence for
money laundering—ten years’ imprisonment and a hefty $6.4 million restitution
payment—are invalid under the Supreme Court’s decision in United States v. Santos,
553 U.S. 507 (2008).1 The Santos decision, however, did not announce a new rule of
constitutional law, much less one that the Supreme Court made retroactive; rather,
Santos only interpreted a statute similar to the one under which Petitioner was
convicted for money laundering. See Prost, 636 F.3d at 581 (observing that Santos
announced “a new statutory interpretation” and not a new, retroactive rule of
constitutional law); see also Santos, 553 U.S. at 514 (plurality opinion) (announcing
the holding of Santos). Thus, because Petitioner has not directed us to any new
1 Petitioner’s reasons for believing that Santos invalidates his conviction and sentence for money laundering are not relevant to our disposition of his appeal, so we refrain from discussing them and pass no judgment upon them. 3 evidence strongly suggestive of innocence, he cannot bring his Santos-based
argument in a successive § 2255 motion. But that doesn’t mark the end of the road
for him, he argues, because § 2255 is inadequate or ineffective to test his detention,
conviction, and sentence on the basis of Santos. Indeed, although the Supreme Court
issued that decision two years before Petitioner pleaded guilty, Petitioner contends
that governing circuit law interpreting Santos “was evolving” from the time his case
began. He thus seems to be claiming that he was unequivocally barred from
prevailing on his Santos-based argument until circuit law interpreting that decision
developed in his favor, which was at some point after he filed his first § 2255 motion.
And as a result, he maintains that he should be able to utilize the savings clause and
§ 2241 to launch a fourth collateral attack on his conviction by relying on Santos and
its progeny.
Even assuming arguendo Petitioner is correct that Santos and its progeny
invalidated his conviction and sentence for money laundering only after he filed his
first § 2255 motion, our decision in Prost nonetheless forces us to conclude that
Petitioner cannot now pursue this argument through a § 2241 petition. In Prost, we
held that “[t]he relevant metric or measure” for determining whether § 2255 is
adequate or effective is “whether a petitioner’s argument challenging the legality of
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 17, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court ZACK ZAFER DYAB,
Petitioner - Appellant, No. 19-3010 v. (D.C. No. 5:18-CV-03290-JWL) (D. Kan.) NICOLE ENGLISH, Warden,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.** _________________________________
In 2010, Petitioner Zack Zafer Dyab, a federal prisoner proceeding pro se,
pleaded guilty to money laundering in violation of 18 U.S.C. § 1957 and conspiracy
to commit wire fraud in violation of 18 U.S.C. § 371. He has since filed three
unsuccessful motions for post-conviction relief under 28 U.S.C. § 2255. Undeterred,
he now turns to another statute—28 U.S.C. § 2241—in an effort to seek post-
conviction relief a fourth time. But unfortunately for Petitioner, the district court
* 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. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. correctly determined that it lacked statutory jurisdiction to adjudicate his § 2241
petition, and so we must affirm its order dismissing his petition on that basis.
To understand why, first consider that federal prisoners like Petitioner can’t
simply turn to § 2241 as a matter of choice when collaterally attacking their
convictions or sentences. That statute is “generally reserved for complaints about the
nature of a prisoner’s confinement”—i.e., the conditions of his confinement—“not
the fact of his confinement.” Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011)
(emphases in original). For that reason, federal prisoners must generally utilize
§ 2255 if they hope “to attack the legality of [their] conviction[s] or sentence[s].” Id.
Indeed, through § 2255, “Congress has chosen to afford every federal prisoner the
opportunity to launch at least one collateral attack to any aspect of his conviction or
sentence.” Id. at 583.
The problem many of those prisoners face, however, is that § 2255 heavily
constrains the instances in which they can file “second or successive” collateral
attacks on their convictions or sentences. 28 U.S.C. § 2255(h). To get that extra bite
at the apple, a federal prisoner’s claim must involve “either newly discovered
evidence strongly suggestive of innocence or new rules of constitutional law made
retroactive by the Supreme Court.” Prost, 636 F.3d at 581; see also 28 U.S.C.
§ 2255(h). Absent one of those two narrow circumstances, the federal prisoner is
almost always unable to move forward on his or her additional request for relief.
“Yet, even here Congress has provided an out.” Prost, 636 F.3d at 584. A
federal prisoner can bypass the stringent requirements on second or successive
2 motions if he can establish that § 2255 “is inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e). Under this “savings clause,” which
applies in only “extremely limited circumstances,” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999), “a prisoner may bring a second or successive attack on
his conviction or sentence under 28 U.S.C. § 2241, without reference to § 2255(h)’s
restrictions.” Prost, 636 F.3d at 584. In such a scenario, § 2241 shifts gears from its
usual function and “allows a federal prisoner . . . to challenge the legality of his
detention, not just the conditions of his confinement.” Id. at 581.
Petitioner’s desire to utilize § 2241 this fourth time around stems from this
savings clause. Specifically, Petitioner claims that his conviction and sentence for
money laundering—ten years’ imprisonment and a hefty $6.4 million restitution
payment—are invalid under the Supreme Court’s decision in United States v. Santos,
553 U.S. 507 (2008).1 The Santos decision, however, did not announce a new rule of
constitutional law, much less one that the Supreme Court made retroactive; rather,
Santos only interpreted a statute similar to the one under which Petitioner was
convicted for money laundering. See Prost, 636 F.3d at 581 (observing that Santos
announced “a new statutory interpretation” and not a new, retroactive rule of
constitutional law); see also Santos, 553 U.S. at 514 (plurality opinion) (announcing
the holding of Santos). Thus, because Petitioner has not directed us to any new
1 Petitioner’s reasons for believing that Santos invalidates his conviction and sentence for money laundering are not relevant to our disposition of his appeal, so we refrain from discussing them and pass no judgment upon them. 3 evidence strongly suggestive of innocence, he cannot bring his Santos-based
argument in a successive § 2255 motion. But that doesn’t mark the end of the road
for him, he argues, because § 2255 is inadequate or ineffective to test his detention,
conviction, and sentence on the basis of Santos. Indeed, although the Supreme Court
issued that decision two years before Petitioner pleaded guilty, Petitioner contends
that governing circuit law interpreting Santos “was evolving” from the time his case
began. He thus seems to be claiming that he was unequivocally barred from
prevailing on his Santos-based argument until circuit law interpreting that decision
developed in his favor, which was at some point after he filed his first § 2255 motion.
And as a result, he maintains that he should be able to utilize the savings clause and
§ 2241 to launch a fourth collateral attack on his conviction by relying on Santos and
its progeny.
Even assuming arguendo Petitioner is correct that Santos and its progeny
invalidated his conviction and sentence for money laundering only after he filed his
first § 2255 motion, our decision in Prost nonetheless forces us to conclude that
Petitioner cannot now pursue this argument through a § 2241 petition. In Prost, we
held that “[t]he relevant metric or measure” for determining whether § 2255 is
adequate or effective is “whether a petitioner’s argument challenging the legality of
his detention could have been tested in an initial § 2255 motion.” Prost, 636 F.3d at
584 (emphasis added). “If the answer is yes, then the petitioner may not resort to the
savings clause and § 2241.” Id. And significantly, an argument could have been
“tested” if “the petitioner had an opportunity to bring” it, and that remains true even
4 if the argument “would have been rejected on the merits at the district court and
circuit panel levels because of adverse circuit precedent.” Id. at 584, 590 (emphasis
in original). Thus,
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 something about the initial § 2255 procedure that itself is inadequate or ineffective for testing a challenge to detention.
Id. at 589 (emphases in original).
Coincidentally, the Prost court then held that the petitioner in that case could
not pursue a Santos-based argument in a § 2241 petition even though adverse circuit
precedent would have prevented him from prevailing on it in his earlier § 2255
motion. See id. at 590–93. In so holding, the Court explained that the petitioner was
“entirely free to raise and test a Santos-type argument in his initial § 2255 motion”
even though that argument likely would have failed at the time. Id. at 590.
Prost controls here. Even if Petitioner’s Santos argument would have failed at
the time he filed his initial § 2255 motion, the fact remains that he could have raised
that argument when filing his initial motion. Petitioner thus fails to direct us to any
evidence that § 2255 served as an “inadequate or ineffective remedial vehicle for
testing” the merits of his argument. Id. at 590 (emphases in original). Put
differently, the savings clause ensures that federal prisoners who can’t comply with
§ 2255 are “provided with at least one opportunity to challenge their detentions” via a
collateral attack, id. at 588 (emphasis added), and since § 2255 provided Petitioner
with such an opportunity, he cannot now rely on the savings clause to pursue a
5 statutory-interpretation argument that he could have raised in a previous § 2255
motion.2
Accordingly, Petitioner cannot pursue his Santos-based argument in a § 2241
petition, which means that the district court correctly determined that it lacked
statutory jurisdiction to reach the merits of that motion. See Abernathy v. Wandes,
713 F.3d 538, 557 (10th Cir. 2013) (“[W]hen a federal petitioner fails to establish
that he has satisfied § 2255(e)’s savings clause test—thus, precluding him from
proceeding under § 2241—the court lacks statutory jurisdiction to hear his habeas
claims.”).
AFFIRMED.
Entered for the Court
Joel M. Carson III Circuit Judge
2 In arguing to the contrary, Petitioner cites myriad cases from our sister circuits that purportedly differ from our holding in Prost and would allow him to use the savings clause to bring his argument under Santos. He thus argues that we should follow the holdings from those cases instead. But even assuming that Petitioner correctly describes the holdings of these out-of-circuit cases, we remain bound by Prost “barring en banc reconsideration, a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court.” United States v. Fager, 811 F.3d 381, 388 n.5 (10th Cir. 2016) (quoting United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000)). Because none of those three circumstances exist here, we must dutifully follow Prost. 6