Hosea Swopes v. A. Ciolli

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HOSEA LATRON SWOPES, No. 22-16054 Petitioner-Appellant, D.C. No. 1:21-cv-01418-JLT-HBK v. A. CIOLLI, Warden, MEMORANDUM* Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding Submitted August 25, 2023** San Francisco, California Before: BUMATAY, KOH, and DESAI, Circuit Judges. Federal prisoner Hosea Swopes appeals from the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition for lack of jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Swopes challenged his underlying Missouri sentence under the “escape * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). - hatch” or “saving clause” of 28 U.S.C. § 2255, which allows a federal prisoner to file a § 2241 petition if his remedy under § 2255 was “inadequate or ineffective.” 28 U.S.C. § 2255(e); see also Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). Since the parties briefed this case, however, the Supreme Court issued a decision in Jones v. Hendrix, 143 S. Ct. 1857 (2023). Jones held that § 2255(e) “does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent [the] restrictions on second or successive § 2255 motions by filing a § 2241 petition.” 143 S. Ct. at 1864. Swopes concedes that Jones is dispositive and forecloses his claim under § 2241.1 Because Swopes had no right to file a § 2241 petition in the first instance, we need not address his challenges to the enhancement of his sentence in light of Borden v. United States, 141 S. Ct. 1817 (2021). Accordingly, we affirm the district court’s decision that it lacked jurisdiction.2 AFFIRMED. 1 The parties filed supplemental briefing in light of Jones. 2 Swopes’s motion to take judicial notice (Dkt. 11) and Appellee’s unopposed motion to supplement the record (Dkt. 20) are denied as moot. - 2