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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHAUNCY GRAY,

 Petitioner,

vs. 3:10cv83/MCR/MD

MICHAEL BABCOCK,

 Respondent.

REPORT AND RECOMMENDATION

This case is before the court upon a petition for writ of habeas corpus filed pursuant

to 28 U.S.C. § 2241 and supporting memorandum of law (doc. 1 & 2). Appended to the

defendant’s petition is a “Request for Withdrawal of Inmate’s Personal Funds” indicating

that the $5.00 filing fee is forthcoming. (Doc. 1 at 8).

Petitioner reports that he was convicted after a jury trial in the United States District

Court for the Western District of Tennessee to conspiracy to attempt to distribute cocaine.

He was sentenced on December 13, 1994 to a term of 264 months imprisonment. He

appealed, and his conviction and sentence were affirmed on June 17, 1996. He filed a

motion for a new trial, claiming that the government relied on the perjurious testimony of

two rebuttal witnesses. He indicates that this motion was “Granted; Rev’d on Appeal (01-

5899 and 5900, 11/22/02), and the date of result was May 31, 2001. (Doc. 1 at 4). He

filed a motion pursuant to 28 U.S.C. § 2255 which was denied on May 12, 2003 as time

barred. He filed a motion for permission to file a successive § 2251 (sic) petition with the

Sixth Circuit, claiming he was entitled to re-sentencing under Booker. The motion was

denied on January 16, 2006, as Booker was not retroactive. 
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Case No: 3:10cv83/MCR/MD

In the instant petition, petitioner contends, apparently for the first time, that he was

indicted on a “non-existent offense” and then convicted of an offense for which he was not

indicted. He claims that the crimes of “conspiring and attempting” to distribute cocaine are

non-existent, and that after trial the judge “amended the indictment and sent the jury to

deliberate on a charge of conspiring to distribute cocaine,” a charge of which defendant

claims he had no notice and thus no opportunity to defend. He claims that he is “actually

innocent,” because one cannot be guilty of a non-existent offense.

A petition pursuant to title 28 U.S.C. § 2241 is not the proper vehicle for raising the

instant challenge. The continuation or execution of an initially valid confinement is

generally the sole issue in a §2241 action. See United States v. Jordan, 915 F.2d 622, 629

(11th Cir. 1990); see also Chambers v. United States, 106 F.3d 472, 474-75 (2nd Cir.1997)

(articulating instances where a federal prisoner may properly file a § 2241 petition). A

collateral attack on the validity of a federal conviction and sentence, is more properly

brought under 28 U.S.C. § 2255 in the district of conviction. Jordan, 915 F.2d at 629;

McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979); Hadjuk v. United States, 764 F.2d 795

(11th Cir. 1985). Here, petitioner challenges the validity of his initial conviction, which he

has already attempted to challenge via 28 U.S.C. § 2255. A defendant who filed a

previous § 2255 motion and was denied relief may not circumvent the rule restricting

successive motions simply by filing a petition under § 2241.

 Title 28 U.S.C. § 2255(e) provides in pertinent part:

An application for a writ of habeas corpus in behalf of a prisoner who is

authorized to apply for relief by motion pursuant to this section, shall not be

entertained if it appears that the applicant has failed to apply for relief, by

motion, to the court which sentenced him, or that such court has denied him

relief, unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

28 U.S.C. § 2255(e) (emphasis added); Wofford v. Scott, 177 F.3d 1236, 1238 (11th Cir.

1999) (quoting § 2255 with added emphasis). The italicized language is known as the

“savings clause,” and could allow habeas corpus review of a claim barred as successive

under § 2255, but only in limited circumstances.
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Case No: 3:10cv83/MCR/MD

The savings clause of § 2255 applies to a claim when: 1) that claim is based

upon a retroactively applicable Supreme Court decision; 2) the holding of

that Supreme Court decision establishes the petitioner was convicted for a

nonexistent offense; and, 3) circuit law squarely foreclosed such a claim at

the time it otherwise should have been raised in the petitioner's trial, appeal,

or first § 2255 motion.

Wofford, 177 F.3d at 1244; Darby v. Hawk-Sawyer, 405 F.3d. 942, 945 (11th Cir. 2005);

see also Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001); United States v.

Peterman, 249 F.3d 458, 461 (6th Cir. 2001). Failure to meet a single prong means a

petitioner’s claim fails. See Wofford, 177 F.3d at 1244; Flint v. Jordan, 514 F.3d 1165,

1168 (11th Cir. 2008). To prove an offense is non-existent, a petitioner must show he was

imprisoned for conduct that was not prohibited, as established by Supreme Court

precedent. Darby, supra, (citing Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003)).

Petitioner has failed to do that in this case, nor can he, as it cannot reasonably be argued

that conspiracy to possess or to possess with intent to distribute cocaine is a “non-existent

offense.” See Wofford v. Middlebrook, 244 Fed. Appx. 267, 2007 WL 1721078 (11th Cir.

2007) (rejecting identical argument). Thus, the savings clause does not apply to

petitioner’s case. Wofford, 177 F.3d at 1244. 

Furthermore, to the extent a petitioner claims that he cannot pursue his claim via 28

U.S.C. § 2255, more is required than demonstrating that there is a procedural barrier to

bringing a § 2255 motion. Restrictions on successive section 2255 motions, standing

alone, do not render that section “inadequate or ineffective” within the meaning of the

savings clause. Wofford, 177 F.3d at 1244-1245; see also In re Davenport, 147 F.3d 605,

608 (7th Cir. 1998) (noting that it cannot be right and would nullify the AEDPA limitations

if a prisoner, prevented from obtaining relief under § 2255, could simply turn to § 2241).

Section 2241 does not provide an additional, alternative or supplemental remedy

to 28 U.S.C. §2255 or an additional bite at the proverbial apple, particularly when the

identical issues could have been raised in a timely § 2255 motion or on direct appeal. See,

e.g., Wofford, supra; Triestman v. United States, 124 F.3d 361, 376 (2nd Cir. 1997);

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The § 2255 remedy is not rendered
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Case No: 3:10cv83/MCR/MD

“inadequate or ineffective” simply because a prior claim under that section has been

denied or disallowed, United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); Jeffers

v. Chandler, 253 F.3d 827, 830 (5

th Cir. 2001), or because petitioner has been denied

permission to file a second or successive § 2255 motion, see Darby, 405 F.3d at 945;

United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999); Wofford, 177 F.3d at 1245;

Davenport, 147 F.3d at 608, or because a second or successive § 2255 motion has been

dismissed, see Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999). Likewise, the fact that

petitioner cannot meet the gate-keeping requirements of the Antiterrorism and Effective

Death Penalty Act does not open the door to a § 2241 petition. Jiminian v. Nash, 245 F.3d

144, 147-48 (2nd Cir. 2001); Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999). And,

section 2255 is not inadequate or ineffective merely because the one-year statute of

limitations has expired. Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3

rd Cir.

2002); Haugh v. Booker, 210 F.3d 1147 (10

th Cir. 2000).

Accordingly it is respectfully RECOMMENDED:

That the petition for writ of habeas corpus under § 2241 (doc. 1) be summarily

denied. 

At Pensacola, Florida this 19TH day of March, 2010.

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control.

A copy of objections shall be served upon all other parties. Failure to object may limit the

scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v.

Roberts, 858 F.2d 698, 701 (11th Cir. 1988).