Ingram v. Dove

38 F. App'x 186

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 20, 2002
• Docket: 01-7287
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Bobby L. Ingram appeals the district court’s dismissal of his habeas petition filed pursuant to 28 U.S.C. § 2241 (1994). Following his conviction and sentencing in 1995, 1 Ingram appealed to the Eleventh Circuit Court of Appeals, which affirmed. The Supreme Court denied Ingram’s subsequent request for grant of certiorari. He then filed a motion pursuant to 28 U.S.C.A. § 2255 (West Supp. 2001) to set aside, vacate, or correct his sentence, which the Eleventh Circuit denied. After the Supreme Court announced its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ingram filed a motion for authorization under 28 U.S.C.A. § 2244 (West 1994 & Supp. 2001) to file a successive motion under 28 U.S.C.A. § 2255 (West Supp. 2001) in order to raise an Apprendi claim. The Eleventh Circuit denied the motion, holding Apprendi is not retroactively applicable. Ingram then filed the instant § 2241 petition which the district court denied.

We recently held that Apprendi claims are not cognizable in a § 2241 petition because Apprendi does not apply retroactively and § 2255 is not rendered inadequate or ineffective merely because a ha-beas petitioner, such as Ingram, is barred from filing a successive § 2255 motion. See San-Miguel v. Dove, 291 F.3d 257, 261 & n. 2 (4th Cir.2002). Therefore, Ingram cannot circumvent § 2255’s bar against filing successive habeas motions by bringing the same claim in a § 2241 petition and hence, his Apprendi claim fails.

Accordingly, we grant Ingram’s motion to proceed in forma pauperis and affirm the judgment of district court as modified to reflect the dismissal of this claim is with prejudice. 2 See Ingram v. Dove, No. CA-01-932 (D.S.C. July 24, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

1 . The record does not identify the federal district court in which Ingram's conviction and sentence occurred.

2 . The district court dismissed Ingram's petition without prejudice for failure to exhaust administrative remedies. Given our disposition in light of San-Miguel, we find exhaustion would not render Ingram’s claim cognizable and thus his claim is dismissed with prejudice.