See Barnett v. Maye, 602 Fed. App'x 717, 719 (10th Cir. 2015) (unpublished) (finding that the district court lacked jurisdiction to hear the petitioner's motion under § 2241 even if “the district and appellate courts that heard his initial § 2255 petition failed either to consider or rule on several claims he presented in that petition”); see also Prost v. Anderson, 636 F.3d 578, 585 (10th Cir. 2011) (“[A]n ‘erroneous decision on a § 2255 motion doesn't suffice to render the § 2255 remedy itself inadequate or ineffective.”).
Whether the Seventh Circuit would grant that request does not affect this court's decision. "[T]he [savings] clause is concerned with process—ensuring the petitioner an opportunity to bring his argument—not with substance—guaranteeing nothing about what the opportunity promised will ultimately yield in terms of relief.". See Prost, 636 F.3d at 584; Barnett v. Maye, 602 Fed.Appx. 717, 719 (10th Cir. 2015). It is petitioner's burden to show that the remedy under § 2255 is inadequate or ineffective.
The savings clause is concerned with process, not substance, "guaranteeing nothing about what opportunity promised will ultimately yield in terms of relief." Prost, 636 F.3d at 584; Barnett v. Maye, 602 Fed. App'x 717, 719 (10th Cir. 2015). It is petitioner's burden to show that the remedy under § 2255 is inadequate or ineffective.
Before a petitioner may properly file a petition under Section 2241, the opportunity to seek a remedy under Section 2255 must be "genuinely absent." Id. (citing Prost, 636 F.3d at 588); Barnett v. Maye, 602 Fed. App'x 717, 719 (10th Cir. 2015). The dismissal of a petition under Section 2241 for failure to satisfy the savings clause test is a dismissal for lack of jurisdiction.
636 F .3d at 584; see also, e.g., Abernathy v. Wandes, 713 F.3d 538, 547 (10th Cir. 2013), cert. denied, 134 S.Ct. 1874 (2014) (applying Prost); Williams, 323 F.2d 673 (finding that the question is whether the remedy provided by § 2255 is adequate, not whether relief was actually obtained).Barnett v. Maye, 602 Fed. App'x 717, 719 (10th Cir. 2015). The savings clause is concerned with process - not substance - "guaranteeing nothing about what opportunity promised will ultimately yield in terms of relief."
For cases within this Circuit, "Prost establishes a straightforward test for determining when the savings clause applies: a prisoner can only bring a petition under § 2241 when his arguments 'could [not] have been tested in an initial § 2255 motion." Barnett v. Maye, 602 Fed. App'x 717, 719 (10 Cir. 2015)(citation omitted). It is entirely clear that Applicant's claim of ineffective assistance of counsel could have been tested in his initial § 2255 motion because in fact, it was tested in his initial § 2255 motion.