Tolliver v. Dobre

211 F.3d 876, 2000 U.S. App. LEXIS 8659, 2000 WL 530326

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 3, 2000
• Docket: 99-41420
• Status: Published

Opinion

PER CURIAM:

In challenging the dismissal of his 28 U.S.C. § 2241 habeas petition, Sylvester Tolliver (federal prisoner # 24806-013) contends that § 2241 is the proper method to collaterally attack his sentence, because a 28 U.S.C. § 2255 motion would be denied as successive, therefore rendering § 2255 ineffective and inadequate. We AFFIRM.

I.

A jury convicted Tolliver for conspiracy to possess with intent to distribute cocaine, aiding and abetting that possession, and carrying a firearm during those drug trafficking offenses. The conviction was affirmed on direct appeal. United States v. Tolliver, No. 93-04438, 19 F.3d 16 (5th Cir.1994)(unpublished).

In 1996, Tolliver filed a § 2255 motion, challenging his conviction for carrying a firearm. The motion was granted. His request to file a second § 2255 motion was denied. (Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) Pub.L. No. 104-132, 110 Stat. 1214 (1996), permission must be received from a court of appeals to file a successive § 2255 motion. 28 U.S.C. § 2244(b)(3)(A).)

In November 1999, Tolliver filed the § 2241 petition in issue, contending § 2255 was inadequate or ineffective, because the motion would be denied as successive. The petition was denied.

II.

Section § 2255 is the primary means of collaterally attacking a federal sentence. Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir.1990). Section § 2241 is used to attack the manner in which a sentence is executed. United States v. Cleto, 956 F.2d 83, 84 (5th Cir.1992). A § 2241 petition which attacks errors that occur at trial or sentencing is properly construed under § 2255. Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131—32 (5th Cir.1987). Nevertheless, a § 2241 petition attacking a federally imposed sentence may be considered if the petitioner establishes the remedy under § 2255 is inadequate or ineffective. Cox, 911 F.2d at 1113.

We join our sister circuits that have held that a prior unsuccessful § 2255 motion, or the inability to meet AEDPA’s “second or successive” requirement, does not make § 2255 inadequate or ineffective. See Charles v. Chandler, 180 F.3d 753, 757-58 (6th Cir.1999); United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999), cert. denied, — U.S.-, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir.1999); In re Davenport, 147 F.3d 605, 608 (7th Cir.1998). Tolliver is simply attempting to circumvent the limitations on filing successive § 2255 motions. Correspondingly, his contention that § 2255 is inadequate or ineffective, because it would be dismissed as successive, is without merit.

III.

For the foregoing reasons, the denial of § 2241 habeas relief is

AFFIRMED.