FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 17, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10608

Non-Argument Calendar

________________________

D. C. Docket No. 07-01439-CV-JEC-1

MICHAEL C. ANTONELLI, 

Petitioner-Appellant, 

versus

WARDEN, U.S.P. ATLANTA, 

UNITED STATES PAROLE COMMISSION, 

Respondents-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 17, 2008)

Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:

This case requires us to decide whether a federal prisoner must obtain

permission from this court to file a second or successive petition for habeas corpus

relief under 28 U.S.C. § 2241. We conclude he does not, but we nonetheless

affirm the district court’s dismissal of the petition.

Michael Antonelli, a federal prisoner proceeding pro se, asks us to reverse

the district court’s dismissal of his habeas corpus petition. Antonelli, convicted of

bank fraud in 1978 and sentenced to 22 years imprisonment, sought habeas relief

in the district court under 28 U.S.C. § 2241, alleging he was denied certain credits

toward his sentence to which he was entitled. Specifically, he claimed the United

States Parole Commission erroneously denied him credit for an eight month period

of federal parole in 1994 during which he committed two other offenses in Cook

County, Illinois. He eventually pled guilty to these state crimes (criminal trespass

and DUI), but now contends the convictions were unconstitutional because his

guilty pleas were uncounseled. He sought, among other things, (i) an order

vacating the DUI and criminal trespass convictions and (ii) an eight month

reduction in his sentence, reflecting the time served on parole during which he

committed the offenses in Illinois.

Antonelli previously filed a § 2241 habeas petition in the Eastern District of

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Arkansas alleging the same grounds for relief. The earlier petition was rejected on

the merits, and the rejection was affirmed on appeal by the Eighth Circuit in an

unpublished disposition.

The district court, adopting a magistrate judge’s report and

recommendation, dismissed the instant petition for two reasons: first, that

Antonelli had not obtained permission from this court to file a second or

successive petition, as required by 28 U.S.C. § 2244(b)(3), and alternatively, that

the petition failed on the merits because it is either successive or abusive. Because

the § 2244(b) gatekeeping requirement implicates the district court’s jurisdiction

to entertain the petition at all, see, e.g., Farris v. United States, 333 F.3d 1211,

1216 (11th Cir. 2003), we address it first.

As the government concedes, the district court’s first reason for dismissing

the petition was erroneous. The gatekeeping scheme of § 2244(b)(3) does not

apply to § 2241 petitions by federal prisoners. By its terms, the gatekeeping

requirement applies only to “a second or successive application permitted by this

section,” 28 U.S.C. § 2244(b)(3)(A), that is, “a second or successive habeas corpus

application under section 2254.” 28 U.S.C. § 2244(b)(2). There is simply no basis

in the statutory text for extending the gatekeeping requirement to federal prisoners

entitled to proceed under § 2241.

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Four circuits have considered whether second or successive § 2241 petitions

are subject to gatekeeping requirements, but in slightly different contexts. They

are generally in agreement. First, the Seventh Circuit in the case of Valona v.

United States, 138 F.3d 693, 694-95 (7th Cir. 1998), considered the issue in

circumstances similar to those presented here: a convicted federal prisoner

challenging a parole determination under § 2241, after previously seeking relief

under § 2255. The court concluded no gatekeeping was required for collateral

attacks by a federal prisoner that “do not address the conviction or sentence.” Id.

at 695. Other circuits have held that § 2241 petitioners filing second or successive

petitions for relief from deportation, Zayas v. INS, 311 F.3d 247, 255-56, (3d Cir.

2002), or from extradition, Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir.

2000), need not obtain prior appellate approval. The important point to derive

from these cases is that the above types of petitioners – federal prisoners

challenging the execution of their sentence, and persons in federal custody

awaiting either deportation or extradition – raise claims which, if they are to

succeed, must do so under § 2241, not § 2255.

Nor does Rittenberry v. Morgan, 468 F.3d 331 (6th Cir. 2006), suggest a

contrary result. In that case, the Sixth Circuit held that some § 2241 petitions are

subject to gatekeeping under § 2244(b). But any appearance of conflict is illusory. 

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In Rittenberry, unlike the other three cases cited supra, the prior petition was filed

under § 2254. Then, the state prisoner simply filed successive claims, nominally

under § 2241, that sought to collaterally attack his judgment of conviction. In

other words, the petitioner sought to avoid the procedural strictures of § 2254 by

captioning his petition “2241.” Subjecting such petitions to gatekeeping is not

inconsistent with the above-cited authority, nor with the logic of our own cases. 

Our cases hold that a prisoner collaterally attacking his conviction or sentence may

not avoid the various procedural restrictions imposed on § 2254 petitions or §

2255 motions by nominally bringing suit under § 2241. See Medberry v. Crosby,

351 F.3d 1049, 1060-61 (11th Cir. 2003) (state prisoner cannot avoid restrictions

on § 2254 petitions “simply by writing ‘§ 2241’ on his petition for federal postconviction relief”); Peoples v. Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004) (§

2244(d) statute of limitations applies to § 2241 petitions by state prisoner in

custody after parole revocation); Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11th

Cir. 2005) (federal prisoner may not circumvent bar on successive § 2255 petitions

by filing under § 2241). In other words, the cases in this circuit consistently

recognize that prisoners who seek to collaterally attack a conviction or sentence

must satisfy the procedural requisites of § 2254 or § 2255, however their petition

is captioned, but persons challenging detention that is not pursuant to a judgment,

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or challenging the execution of their sentence, need not. The reasoning of these

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cases suggests that a prisoner may not avoid gatekeeping under § 2244(b) or §

2255(h) by a mere change of caption when, in substance, their lawsuit collaterally

attacks a sentence.

Here, Antonelli’s petition is properly brought pursuant to § 2241. A § 2241

action is the appropriate vehicle to challenge a decision of the federal Parole

Commission. Hajudk v. United States, 764 F.2d 795, 796 (11th Cir. 1985)

(ordering a jurisdictional dismissal of a § 2255 motion challenging Parole

Commission decision). This is because challenges to the execution of a sentence,

rather than the validity of the sentence itself, are properly brought under § 2241. 

 Members of this court have disagreed in the past concerning the relationship between § 1

2241 and § 2254. Specifically, they have disagreed about whether the two statutes embody

distinct remedies, and thus whether a state prisoner may avoid the procedural restrictions on §

2254 petitions by filing under § 2241. Compare Thomas v. Crosby, 371 F.3d 782, 785-88 (11th

Cir. 2004) (Black, J.) (citing Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003)) with id. at

802-811 (Tjoflat, J., concurring specially). There is no such dispute concerning federal prisoners. 

It is well-settled that a § 2255 motion to vacate is a separate and distinct remedy from habeas

corpus proper. See United States v. Jordan, 915 F.2d 622 (11th Cir. 1990) (citation omitted); see

also Medberry, 351 F.3d at 1056-57 (discussing history of § 2255). It is also clear that a § 2255

motion is the exclusive remedy for a federal prisoner to collaterally attack his conviction and

sentence, except in the rare cases where it is inadequate to do so. 28 U.S.C. § 2255(e); see also

Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999). Hence, the domains of the different collateral

remedies are more clearly distinct for federal prisoners than their state counterparts. 

Accordingly, it is uncontroversial that federal prisoners cannot avoid the procedural restrictions

on § 2255 motions by changing the caption on their petition to § 2241. Cf. Hawk-Sawyer, 405

F.3d at 945. A prisoner in custody pursuant to a federal court judgment may proceed under §

2241 only when he raises claims outside the scope of § 2255(a), that is, claims concerning

execution of his sentence.

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See Bishop v. Reno, 210 F.3d 1295, 1304 (11th Cir. 2000) (citations omitted). 

Because Antonelli’s petition raises claims cognizable under § 2241 but not

§ 2255, it was not subject to gatekeeping in this court, and the district court had

jurisdiction to entertain it. Hence, the dismissal for failure to obtain prior

appellate permission to file was erroneous. Nonetheless, the district court is due to

be affirmed on its alternate rationale: the petition’s claims are successive. 

Successive § 2241 petitions by federal prisoners are subject to threshold dismissal

in the district court because

No circuit or district judge shall be required to entertain an

application for a writ of habeas corpus to inquire into the detention of

a person pursuant to a judgment of a court of the United States if it

appears that the legality of such detention has been determined by a

judge or court of the United States on a prior application for a writ of

habeas corpus, except as provided in section 2255.

28 U.S.C. § 2244(a). Antonelli’s claims that his Illinois convictions are

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constitutionally infirm has been previously adjudicated on the merits by the

Arkansas habeas court and affirmed on appeal by the Eighth Circuit. His current

petition for habeas corpus was therefore successive, and properly dismissed by the

 At first glance, one might conclude from the proviso (“except as provided in section 2

2255”) that § 2241 petitions by federal prisoners are indeed subject to gatekeeping via § 2255(h),

which is the only provision of § 2255 addressing the fate of successive motions to vacate. But §

2255(h), by its terms, applies only to a “second or successive motion” – that is, a second or

successive motion to vacate a sentence under § 2255. Hence, § 2255(h) does not apply to § 2241

habeas corpus petitions, assuming the prisoner raises claims properly brought under the latter

provision.

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district court. 

AFFIRMED.

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