IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-60229

(Summary Calendar)

 

DONALD HOOKER,

Petitioner-Appellant,

versus

J.L. SIVLEY, Federal Correctional Institution,

United States Department of Justice,

Federal Bureau of Prisons, Talladega, Alabama, 

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Mississippi

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September 20, 1999

Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

Petitioner-Appellant Donald Hooker (federal prisoner #09595-

042) appeals the denial of his 28 U.S.C. § 2241 petition, which was

treated by the district court as a 28 U.S.C. § 2255 motion and

dismissed as time-barred under that sections’s one-year limitations

period. Hooker argues that the district court violated his

constitutional rights in construing his § 2241 petition as a § 2255

motion and dismissing it as time-barred. He contends that he

should have been allowed to proceed under § 2241 because § 2255

offers an “inadequate and ineffective” remedy in his case.

In his § 2241 petition, Hooker raised, among other things,

several challenges to his conviction under 18 U.S.C. § 924(c)(1)
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for aiding and abetting the using and carrying of a firearm during

and in relation to a drug-trafficking crime. He included a claim

that he was “actually innocent” of the offense in light of the

Supreme Court’s decision in Bailey v. United States, 516 U.S. 137

(1995). In 1993, prior to the Supreme Court’s decision in Bailey,

Hooker unsuccessfully sought post-conviction relief under § 2255.

After Bailey was rendered, Hooker sought leave from us to file a

successive § 2255 motion, insisting that his § 924(c)(1) conviction

should be reversed in light of that decision. We denied him leave

to appeal because his claim did not involve newly discovered

evidence or a new rule of constitutional law.

Hooker subsequently filed the instant § 2241 petition in the

U.S. District Court for the Northern District of Alabama, the

district in which he is confined. The record shows that the

petition was transferred administratively, without a judicial

order, from the Northern District of Alabama to the Northern

District of Mississippi, the district court in which Hooker was

convicted. As previously stated, the district court for the

Northern District of Mississippi construed Hooker’s petition as a

§ 2255 motion and dismissed it as time-barred under that section’s

one-year limitations period. Although § 2255 is the proper vehicle

for challenging the validity of a conviction and sentence, see

United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994), the

district court lacked jurisdiction to construe Hooker’s petition as

a § 2255 motion because he had not received prior authorization

from us to file a successive § 2255 motion. See 28 U.S.C. §§ 2244,
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2255; United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998),

cert. denied, 119 S. Ct. 1156 (1999). The district court likewise

lacked jurisdiction to entertain Hooker’s pleading as a § 2241

petition: Such a petition must be filed in the district where the

prisoner is incarcerated. See United States v. Weathersby, 958

F.2d 65, 66 (5th Cir. 1992). As Hooker is incarcerated in

Talladega, Alabama, only the district court for the Northern

District of Alabama would have jurisdiction to entertain his § 2241

petition. See 28 U.S.C. § 81(a)(4).

As noted, Hooker alleged in his petition that he is seeking

relief under § 2241 because § 2255 offered an “inadequate and

ineffective” remedy in his case. He pointed out that he could not

have presented his claim of “actual innocence” under Bailey in his

first § 2255 motion because Bailey had not been decided at that

time. He also contended that he is prohibited from raising his

Bailey claim in a second § 2255 motion because he is unable to

satisfy the requirements of the Antiterrorism and Effective Death

Penalty Act (AEDPA) that govern the filing of successive § 2255

motions. Hooker advances that same argument on appeal.

Hooker’s argument is based on the “savings clause” of § 2255,

under which a prisoner may seek § 2241 relief in lieu of § 2255

relief if he can establish that “the remedy provided for under §

2255 is inadequate or ineffective to test the legality of his

detention.” See Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,

1113 (5th Cir. 1990) (internal quotations and citation omitted); §

2255. We have not had occasion to address whether a prisoner may
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use the “savings clause” of § 2255 to raise a Bailey claim in a §

2241 petition to circumvent the successive requirements established

by the AEDPA. See United States v. Sorrells, 145 F.3d 744, 748 n.2

(5th Cir. 1998). Some circuits have allowed prisoners to do so

under these circumstances. See, e.g., In re Davenport, 147 F.3d

605, 611-12 (7th Cir. 1998); Triestman v. United States, 124 F.3d

361, 377-80 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 248-52

(3d Cir. 1997). Recently, the Eleventh Circuit, the circuit in

which Hooker’s application was originally filed, adopted the

Seventh Circuit’s approach in Davenport as it pertains to Bailey

claims, even though it did so in a case in which no Bailey issue

was raised. See Wofford v. Scott, 177 F.3d 1236, 1244 & n.3 (11th

Cir. 1999).

In his § 2241 petition, Hooker cites the Second Circuit’s

decision in Triestman and the Third Circuit’s decision in

Dorsainvil in support of his argument that he was entitled to seek

habeas relief under § 2241. Hooker did not, however, obtain a

judicial determination regarding his ability to proceed under

§ 2241; rather, his petition was administratively transferred by

the clerk’s office to the Northern District of Mississippi.

A clerk of court may not reject a pleading for lack of

conformity with requirements of form; only a judge may do that.

See McClellon v. Lone Star Gas Co., 66 F.3d 98, 101 (5th Cir.

1995). If a clerk of court may not reject a pleading for defects

of form, it follows a fortiori that a clerk of court may not reject

a pleading on substantive grounds, which is essentially what
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occurred in the instant case. Hooker is entitled to a judicial

determination whether he may proceed under § 2241, and that

determination can only be made in the district where he is

incarcerated. See Weathersby, 958 F.2d at 66. Accordingly, the

district court’s judgment is vacated, and Hooker’s case is remanded

to the district court with instructions to transfer the case back

to the U.S. District Court for the Northern District of Alabama.

VACATED AND REMANDED.