Pack v. Yusuff

• Decision Date: 10 July 2000
• Docket Number: No. 99-60283,99-60283
• Citation: 218 F.3d 448
• Parties: (5th Cir. 2000) JAMES DAVID PACK, Petitioner-Appellant, v. KHURSHID Z. YUSUFF, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 448

218 F.3d 448 (5th Cir. 2000)

JAMES DAVID PACK, Petitioner-Appellant, v. KHURSHID Z. YUSUFF, Respondent-Appellee.

No. 99-60283

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 10, 2000

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Southern District of Mississippi, Jackson

Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant James David Pack (Pack), a federal prisoner currently incarcerated in Mississippi, was convicted in 1989 in United States District Court for the Eastern District of Tennessee of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). Based on his prior state convictions for, among other things, burglary and grand larceny, Pack was sentenced to a mandatory minimum term of fifteen years' imprisonment under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Thereafter, in Tennessee state court, Pack filed an unsuccessful writ of error coram nobis, in which he challenged the validity of prior state convictions. He then filed in the Eastern District of Tennessee a motion for post-conviction relief under 28 U.S.C. § 2255, which was denied. On July 27, 1998, Pack filed in the Southern District of Mississippi the instant petition for habeas corpus relief under 28 U.S.C. § 2241. The district court dismissed this petition with prejudice and Pack now appeals. We affirm, with one minor modification.

Facts and Proceedings Below

Pack, a prisoner at the Federal Correctional Institution in Yazoo City, Mississippi, was convicted in 1989 in the Eastern District of Tennessee for violating 18 U.S.C. 922(g)(1), which prohibits the carrying of a firearm by a convicted felon.¹ In 1979, Pack in Tennessee state criminal court had pleaded guilty to and was convicted of four separate burglary offenses and one grand larceny offense. In 1982, he reappeared before the same state court and pleaded guilty to and was convicted of four burglary offenses and one offense of possession of a controlled substance with intent to sell. Based on these prior offenses, the Eastern District of Tennessee court in 1989 sentenced Pack to a minimum mandatory term of imprisonment for fifteen years pursuant to the ACCA.² Pack did not directly appeal his 1989 federal conviction or sentence.

In May 1996, Pack filed in Tennessee state court a petition for writ of error coram nobis, in which he challenged the legality of his 1979 and 1982 state convictions. The Tennessee Court of Criminal Appeals dismissed Pack's petition as time-barred, whether construed as a request for the writ or as a request for post-conviction relief. See Pack v. State, 1997 WL 531155 (Tenn. Crim. App. Aug. 29, 1997). On April 27, 1997, Pack filed in the Eastern District of Tennessee a motion for post-conviction relief under 28 U.S.C. § 2255, in which he alleged that his federal sentence had been enhanced on the basis of constitutionally infirm state convictions. Pack claimed that in connection with both his 1979 and 1982 state convictions, he received ineffective assistance of counsel and did not enter voluntary guilty pleas. In the meantime, Pack filed an application for permission to appeal his state sentences; on May 4, 1998, the Tennessee Supreme Court denied his application. On June 26, 1998, the Eastern District of Tennessee court denied Pack's section 2255 motion. That court concluded that under Custis v. United States, 114 S.Ct. 1732 (1994), Pack could only bring a section 2255 challenge to his enhanced federal sentence by first getting his prior state convictions vacated, either through state proceedings or a federal habeas challenge to those convictions themselves, and then moving to vacate his federal sentence pursuant to section 2255. The Sixth Circuit denied Pack's motion for a certificate of appealability (COA) of the denial of his section 2255 motion.

Thereafter, on July 27, 1998, Pack filed in the Southern District of Mississippi the instant habeas corpus motion pursuant to 28 U.S.C. § 2241, in which he alleged-again-that his current federal sentence under the ACCA had been enhanced on the basis of his allegedly unconstitutional 1979 and 1982 state convictions. As he had in his section 2255 motion, Pack claimed that numerous flaws in the proceedings leading up the 1979 and 1982 convictions rendered those convictions constitutionally invalid; these alleged flaws included ineffective assistance of counsel, the state court's failure to conduct a proper colloquy prior to his pleading guilty, and his failure actually to enter a guilty plea in his 1979 conviction. On March 12, 1999, the district court dismissed Pack's petition for lack of jurisdiction. The district court observed that Pack's challenge to the validity of his sentence was governed by section 2255, not section 2241, and that only the court where he was convicted and sentenced (the Eastern District of Tennessee), not the court in the district where he was incarcerated (the Southern District of Mississippi), had jurisdiction to hear such a challenge. Pack now appeals the dismissal of his section 2241 petition.³

Discussion

This Court reviews de novo a district court's dismissal of a section 2241 petition on the pleadings. See Venegas v. Henman, 126 F.3d 760, 761 (5th Cir. 1997). We conclude that the district court was correct in dismissing Pack's section 2241 petition for lack of jurisdiction.

A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 are distinct mechanisms for seeking post-conviction relief. A section 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Blau v. United States, 566 F.2d 526, 527 (5th Cir. 1978) (per curiam). A section 2255 motion, by contrast, "provides the primary means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Relief under section 2255 is warranted for errors cognizable on collateral review that occurred "at or prior to sentencing." Id. (internal quotation omitted). A section 2255 motion must be filed in the sentencing court. Id. at 1113 n.2.

This Court has observed that "[a] petition for a writ of habeas corpus pursuant to [section] 2241 is not a substitute for a motion under [section] 2255." McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam); see also Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963) (per curiam) (noting that a section 2241 petition "is not an additional, alternative, or supplemental remedy, to the relief afforded by motion in the sentencing court under § 2255"). A section 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion. See Ojo, 106 F.3d at 683 ("Because all of the errors Ojo alleges [occurred before or during sentencing], they must be addressed in a § 2255 petition, and the only court with jurisdiction to hear that is the court that sentenced him."); Cox, 911 F.2d at 1114 ("The district court's dismissal of these grounds clearly was proper because they concerned alleged errors that occurred at sentencing and, therefore, may be remedied under section 2255."); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987).

Section 2255 contains a "savings clause," which acts as a limited exception to this general rule. The savings clause provides that:

"An application for a writ of habeas corpus in 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.

Accordingly, a section 2241 petition that seeks to challenge a federal sentence or conviction-thereby effectively acting as a section 2255 motion-may only be entertained when the petitioner establishes that the remedy provided for under section 2255 is inadequate or ineffective. See United States v. Hayman, 72 S.Ct. 263, 273 (1952); Charles v. Chandler, 180 F.3d 753, 755 (6th Cir. 1999) (per curiam); Bradshaw, 86 F.3d at 166; McGhee, 604 F.2d at 10.

The petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective. McGhee, 604 F.2d at 10. Pack contends that section 2255 relief is inadequate and ineffective because he is time-barred from bringing a second or successive section 2255 motion. In his reply to the government's motion to dismiss his section 2241 claim before the district court, he also argued that section 2241 relief was appropriate because the Eastern District of Tennessee had already (erroneously, in his estimation) denied his section 2255 motion. Neither of these arguments demonstrates that the relief available to Pack from section 2255 was inadequate or ineffective.

"Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or ineffective only in extremely limited circumstances." Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). This Court and other Courts of Appeals have consistently noted that "a prior unsuccessful [section] 2255 motion is insufficient, in and of itself, to show the inadequacy or ineffectiveness of the remedy." McGhee, 604 F.2d at 10; see also Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (per curiam); Charles, 180 F.3d at 756; Bradshaw, 86 F.3d at 166; Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); Zvonaric v. Mustain, 562 F.2d 570, 572 n.1 (8th Cir. 1977) ...