as the argument still could have been tested in that § 2255 proceeding. Second, we address Mr. Abernathy’s contention that denying him access to § 2241 would effect a violation of the Suspension Clause. Mr. Abernathy did not raise this Suspension Clause argument before the district court, nor does he ask for plain-error review on appeal. In many instances, this would foreclose our consideration of the argument. But, for reasons that we explain below, we give Mr. Abernathy the benefit of plain-error' review. After concluding that Mr. Abernathy’s Suspension Clause argument fails under plain-error review, we determine that he is foreclosed from bringing his § 2241 petition. A Before addressing Mr. Abernathy’s arguments, a brief review of § 2255 and our decision (10th Cir.1996) (<HOLDING>). Following AEDPA’s enactment, federal
recognizing that in behrens v pelletier 516 us 299 116 sct 834 133 led2d 773 1996 the supreme court held that a defendant may appeal both the district courts denial of a motion to dismiss on the basis of qualified immunity and a subsequent denial of summary judgment on the basis of such immunity holding that the supreme courts interpretation of 18 usc  924c1 in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 has retroactive application to cases on collateral review holding that the supreme courts decision in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 effected a material change in the law because the circuit previously held that accessability of a firearm was enough to support an inference that a firearm was used in a drug crime whereas bailey required active employment of the firearm holding that united states v gaudin 515 us 506 115 sct 2310 132 led2d 444 1995 which shifted the determination of materiality in a prosecution under 18 usc  1001 from the judge to the jury was not a watershed rule justifying retroactive collateral review under teague holding that the supreme courts decision in bailey v united states 516 us 137 116 sct 501 133 led2d 472 1995 effected a material change in the law because the circuit previously held that accessibility of a firearm was enough to support an inference that a firearm was used in a drug crime whereas bailey required active employment of the firearm