211 F.3d 1270 (6th Cir. 2000), 00-5204, Matter of Payton

• Citation: 211 F.3d 1270
• Party Name: In re: James F. PAYTON, Petitioner.
• Case Date: May 01, 2000
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

Page 1270

211 F.3d 1270 (6th Cir. 2000)

In re: James F. PAYTON, Petitioner.

No. 00-5204.

United States Court of Appeals, Sixth Circuit

May 1, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

Before RYAN and BOGGS, Circuit Judges; DUGGAN, District Judge. ^[*]

ORDER

James F. Payton petitions the court to grant him permission under 28 U.S.C. § 2244 and § 2255 to file a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Payton also requests that the court grant him relief under the All Writs Act, 28 U.S.C. § 1651.

According to his petition, Payton was convicted by a jury in 1990 in the United States District Court for the Northern District of Texas, of conspiracy to possess and possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1) and § 846. He was sentenced to 235 months of imprisonment. It is not clear whether Payton filed an appeal. It is apparent, however, that he has filed an unsuccessful motion to vacate his sentence under 28 U.S.C. § 2255 and that the Fifth Circuit has denied him permission to file a second or successive § 2255 motion to vacate under 28 U.S.C. §§ 2244/2255.

Payton now requests that this court grant him permission to file a § 2241 petition so he can challenge his conviction because his sentence exceeds the maximum sentence allowed for a general verdict of guilty for his particular conspiracy offense. He also requests that the court issue an extraordinary writ and release him from prison.

Upon review, we conclude that Payton does not need this court's permission to file a § 2241 habeas corpus petition in the district court. The gatekeeping provisions of §§ 2244 and 2255 only apply to second and successive applications for relief under 28 U.S.C. §§ 2254 and 2255, and not to applications for habeas corpus relief under 28 U.S.C. § 2241. See United States v. Barrett, 178 F.3d 34, 42 (1st Cir.1999); Valona v. United States, 138 F.3d 693, 694-695 (7th Cir.1998); see also Felker v. Turpin, 518 U.S. 651, 658, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (gatekeeping provisions do not apply to § 2241 habeas corpus petitions that may be filed as original actions in Supreme Court). Payton is attempting to fit his case within the narrow savings clause in § 2255 that permits review of a conviction...