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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WILLIAM HENRY DUDLEY,

 Petitioner,

vs. 3:09cv375/RV/MD

UNITED STATES OF AMERICA,

 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 (doc. 4). No motion for leave to proceed in forma pauperis has been

filed, and the filing fee has not been paid. Because the instant petition is subject to

summary dismissal, the court will not delay the proceedings to require the petitioner to

submit the appropriate forms and/or fee.

Petitioner was convicted in case number 3:05cr118/RV/MD of controlled substance

and firearm offenses and sentenced to a term of 240 months imprisonment on April 27,

2006. His appeal was dismissed upon his own motion. Case 3:05cr118/RV/MD, doc. 100. 

He filed a motion to vacate pursuant to 28 U.S.C. § 2255 in July of 2007, and this motion

was denied on May 5, 2008. Case 3:05cr118/RV/MD, doc. 106, 125, 138. In April of 2008,

counsel was appointed to determine whether defendant would be eligible for a sentence

reduction in accordance with guideline amendment, but moved to withdraw in July of 2008

after analyzing the defendant’s situation and concluding that no action would be taken by

the Public Defender with respect to defendant’s sentence. Id., doc. 129, 140, 141. 
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The instant petition, filed in August of 2009, seeks to challenge the district court’s

jurisdiction over the defendant’s criminal case. He seeks “reversal” of his indictment and

that the criminal proceedings be declared “void,” among other things.

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

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

th nd

(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 (5 Cir. 1979); Hadjuk v. United States, 764 F.2d 795 th

(11 Cir. 1985). A defendant who filed a previous § 2255 motion and was denied relief th

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 (11 Cir. th

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.

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.

Case No: 3:09cv375/RV/MD
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Wofford, 177 F.3d at 1244; Darby v. Hawk-Sawyer, 405 F.3d. 942, 945 (11 Cir. 2005); th

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

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

part test means a petitioner’s claim fails. See Wofford, 177 F.3d at 1244; Flint v. Jordan,

514 F.3d 1165, 1168 (11 Cir. 2008). Petitioner cannot meet this test. th

To the extent a petitioner might attempt to claim 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 (7 Cir. 1998) (noting that it cannot be right and would nullify the AEDPA limitations th

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 (2 Cir. 1997); nd

Bradshaw v. Story, 86 F.3d 164, 166 (10 Cir. 1996). The § 2255 remedy is not rendered th

“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 (6 Cir. 2001); Jeffers th

v. Chandler, 253 F.3d 827, 830 (5 Cir. 2001), or because petitioner has been denied th

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 (1 Cir. 1999); Wofford, 177 F.3d at 1245; st

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 (9 Cir. 1999). Likewise, the fact that

th

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 (2 Cir. 2001); Charles v. Chandler, 180 F.3d 753, 758 (6 Cir. 1999). And, 

nd th

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

Case No: 3:09cv375/RV/MD
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limitations has expired. Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3 Cir. rd

2002); Haugh v. Booker, 210 F.3d 1147 (10 Cir. 2000). th

Accordingly it is respectfully RECOMMENDED:

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

denied. 

At Pensacola, Florida this 2 day of September, 2009.

nd

 /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 ten

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 (11 Cir. 1988). th

Case No: 3:09cv375/RV/MD