UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 99-41420

Summary Calendar

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SYLVESTER TOLLIVER,

Petitioner-Appellant,

versus

JONATHON DOBRE,

Respondent-Appellee.

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Appeal from the United States District Court

for the Eastern District of Texas

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May 3, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

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
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conviction was affirmed on direct appeal. United States v.

Tolliver, No. 93-4438 (5th Cir. 18 Mar. 1994)(unpublished).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.
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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 (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.