Abdullah v. Hedrick

• Decision Date: 17 December 2004
• Docket Number: No. 03-1645.,03-1645.
• Citation: 392 F.3d 957
• Parties: Mustafa ABDULLAH, Appellant, v. Bill HEDRICK, Warden, United States Medical Center for Federal Prisoners, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 957

392 F.3d 957

Mustafa ABDULLAH, Appellant, v. Bill HEDRICK, Warden, United States Medical Center for Federal Prisoners, Appellee.

No. 03-1645.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2004.

Filed: December 17, 2004.

David R. Mercer (argued), Springfield, MO (Ann M. Koszuth, on the brief), for appellant.

Lajuana M. Counts (argued), Asst. U.S. Atty., Kansas City, MO, for appellee.

Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Mustafa Abdullah appeals the district court's¹ dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2241 (2000). The issue in this case is whether, in the circumstances presented, 28 U.S.C. § 2255 (2000) is inadequate or ineffective to test the legality of Abdullah's conviction, such that a district court would have jurisdiction to consider a § 2241 petition for habeas corpus relief. We agree that the district court had no jurisdiction to consider Abdullah's claim, and we affirm the judgment of the district court.

I.

Abdullah's claim, stemming from a firearm conviction under 18 U.S.C. § 924(c)(1) (1988), has been before this court before. The factual background of his claim is more fully developed in the previous opinions. In brief, Abdullah pleaded guilty to charges of drug distribution under 21 U.S.C. §§ 841 and 846 (1988), and "use" of a firearm under § 924(c)(1). We affirmed on appeal. See United States v. Abdullah, 947 F.2d 306 (8th Cir.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1969, 118 L.Ed.2d 569 (1992).

In 1993 Abdullah filed a § 2255 motion raising ineffective-assistance-of-counsel claims. In this motion, Abdullah did not argue that his § 924(c)(1) conviction was invalid because he had not properly understood the statute's definition of the word "use." In December 1995 the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey held that the "use" element in § 924(c)(1) "requires evidence sufficient to show an active employment of the firearm by the defendant." Bailey, 516 U.S. at 143, 116 S.Ct. 501. Thereafter, in March 1996, while his § 2255 motion was pending in the district court, Abdullah filed a pro se motion in the district court in which he argued, for the first time, that his § 924(c)(1) conviction was invalid under Bailey. Because Abdullah was represented by counsel, the district court refused to accept the motion. Abdullah v. United States, 240 F.3d 683, 685-86 (8th Cir.), cert. denied, 534 U.S. 923, 122 S.Ct. 278, 151 L.Ed.2d 204 (2001). "The district court denied the motion without consideration of its contents and instructed the clerk to return the motion to Abdullah's attorney of record. Abdullah's private counsel never raised the Bailey argument on his behalf." Id. at 686. The district court denied Abdullah's § 2255 motion in September 1996. Id. at 684.

Appealing the denial of his § 2255 motion, Abdullah again argued that his § 924(c)(1) conviction was invalid. Id. at 684-85. Abdullah argued, and it was conceded by the government, that the firearm conviction was invalid under Bailey and Bousley v. United States, 523 U.S. 614, 616, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Abdullah, 240 F.3d at 685. Affirming the district court, we held that Abdullah had "procedurally defaulted the Bailey/Bousley argument" by not properly presenting the argument to the district court in his initial § 2255 motion. Abdullah, 240 F.3d at 686. We also held that his claim was more properly considered an attempt to file a second or successive § 2255 motion and that Abdullah was time-barred from presenting the claim in a second motion because of the one-year time limit in § 2255. Id.

Abdullah now seeks to present his Bailey claim through a § 2241 petition. The district court dismissed the petition as improperly filed under § 2241. We review de novo the district court's dismissal of Abdullah's § 2241 petition. United States v. Lurie, 207 F.3d 1075, 1076 (8th Cir.2000).

II.

A petitioner who seeks to challenge his sentence or conviction generally must do so in the sentencing court through § 2255 and cannot use § 2241 to challenge the conviction without first showing that § 2255 would be inadequate or ineffective. Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir.2003); Lurie, 207 F.3d at 1077. The requirement that a petitioner must first demonstrate that § 2255 is "inadequate or ineffective" comes from § 2255's savings clause:

An application for a writ of habeas corpus in [sic] behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255.

In such cases, the petitioner has the burden of showing that the remedy under § 2255 would be inadequate or ineffective. Hill, 349 F.3d at 1091. It is well established that "in order to establish a remedy is `inadequate or ineffective' under § 2255, there must be more than a procedural barrier to bringing a § 2255 petition." Id. Furthermore, § 2255 is not inadequate or ineffective merely because the claim was previously raised in a § 2255 motion and denied, or because a remedy under that section is time-barred. Lurie, 207 F.3d at 1077. Abdullah argues that he satisfies the "inadequate or ineffective" prong of the savings clause, and should therefore be permitted to bring a claim under § 2241, because he has demonstrated that he is "actually innocent" of the crime for which he was convicted.<sup>2</sup> He argues that a showing of actual innocence, coupled with the procedural inability to raise his claim under § 2255, amounts to more than a mere procedural barrier to raising his claim. We have previously declined to decide "whether a claim of `actual innocence' allows a petitioner to bypass the gatekeeping requirements of the amended § 2255 and proceed with a § 2241 habeas corpus petition via § 2255's savings clause." Lurie, 207 F.3d at 1077 n. 4. We also did not consider the merits of Abdullah's actual innocence claim in his prior appeal from the denial of his § 2255 motion. Abdullah, 240 F.3d at 686.

III.

In support of his attempt to use § 2241 as a vehicle to present his claim, Abdullah cites several cases from other circuits in which the courts have, under limited circumstances, permitted petitioners to use § 2241 to bring a Bailey claim. The Second, Third, Fourth, Fifth, and Seventh Circuits have considered such claims in the context of Bailey challenges. Other circuits have considered the issue in other contexts. In each case, the courts have similarly limited the use of § 2241 petitions to cases in which the petitioner asserts a claim of actual innocence and never had an unobstructed procedural opportunity to raise the claim. After carefully considering those cases and the circumstances of Abdullah's petition, we hold that § 2255 was not inadequate or ineffective to raise Abdullah's claim because, as our first opinion pointed out, regardless of his ability to demonstrate actual innocence, Adbullah did have an unobstructed procedural opportunity to raise his claim.

The Third Circuit first considered a Bailey claim in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). In Dorsainvil, the petitioner, like Abdullah, was convicted of use of a weapon under § 924(c)(1). Dorsainvil sought collateral relief under § 2255. In 1994, the district court denied his first § 2255 motion. Id. at 246. In December 1995 Bailey was decided, and in April 1996 the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted. AEDPA amended § 2255, imposing strict restrictions on when second or successive § 2255 motions could be filed. The Third Circuit denied Dorsainvil's request to file a second § 2255 motion. Id. at 247-48. The court found that he did not qualify under the amended § 2255 for permission to file a second or successive petition because he had presented no change in factual circumstances, id. at 247, and Bailey was not a "new rule of constitutional law," id. at 248. However, the court concluded that "under narrow circumstances, a petitioner in Dorsainvil's uncommon situation may resort to the writ of habeas corpus codified under 28 U.S.C. § 2241." Id. Noting that Dorsainvil had demonstrated actual innocence because he had been convicted for conduct that the law did not make criminal, the court also reasoned that "Dorsainvil does not have and, because of the circumstance that he was convicted for a violation of § 924(c)(1) before the Bailey decision, never had an opportunity to challenge his conviction as inconsistent with the Supreme Court's interpretation of § 924(c)(1)." Id. at 251. The court stated that allowing § 2241 to be used by someone in Dorsainvil's position "[was] hardly likely to undermine the gatekeeping provisions of § 2255." Id.³

Soon after Dorsainvil, the Second Circuit decided Triestman v. United States, 124 F.3d 361 (2d Cir.1997). In 1992, Triestman pleaded guilty to use of a firearm under § 924(c)(1). Id. at 363. His § 924(c)(1) conviction was affirmed on direct appeal. Id. at 364. In 1994, Triestman filed his first § 2255 motion attacking the validity of his guilty plea because "he had entered into it under the mistaken belief that he could be convicted on the basis of the mere possession of a firearm." Id. The district court denied the motion, and the Second Circuit summarily affirmed in 1995, before Bailey was decided and before § 2255 was amended. Id. In 1996 the Second Circuit denied authorization to file a successive § 2255 motion. Id. at 365-66. Although Triestman's claim would have been cognizable under the old § 2255, id. at 368, the court held that Triestman did not satisfy the requirements of the amended statute for second or successive motions, id....