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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION

YANCEY JACK GARRINGER,

 Petitioner, 

vs. Case No. 3:11cv174/MCR/CJK 

UNITED STATES OF AMERICA, 

 Respondent.

REPORT AND RECOMMENDATION

This cause is before the court upon petitioner filing an amended petition for

writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 13). The filing fee has been

paid. (Doc. 8). From a review of the record and the arguments presented, it is the

opinion of the undersigned that petitioner has not demonstrated entitlement to

proceed under § 2241; therefore, this action should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a federal inmate confined at the Federal Prison Camp at Maxwell

Air Force Base in Montgomery, Alabama, is currently serving a sentence imposed by

this Court in Case Number 3:10cr89/MCR. Petitioner was convicted upon jury

verdict of controlled substance and firearmoffenses and sentenced on April 11, 2011,

to a total term of 123 months imprisonment followed by supervised release. See

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United States of America v. Yancey Jack Garringer, Case Number 3:10cr89/MCR,

Doc. 85. Judgment was entered that day. Id. Although petitioner states he did not

appeal from the judgment, (doc. 13, p. 2), that isincorrect. As petitioner is aware, the

Clerk, in an abundance of caution and at the direction of chambers, docketed a copy

of his original § 2241 petition in petitioner’s criminal case as a Notice of Appeal. See

Case Number 3:10cr89/MCR, Doc. 87. That appeal is pending.

Petitioner’s amended § 2241 petition challenges the validity of his conviction

and sentence, claiming violation of his Fourth Amendment right to be free from

unreasonable searches and seizures (doc. 13, pp. 5-8, 13-15, 16), that he was

improperly targeted as a result of the War on Drugs(id., pp. 8-11), that federal agents

lacked jurisdiction to arrest him (id., p. 12), and that the sentencing court should have

held a hearing on the issue of his learning disorders (id., p. 15). As relief, petitioner

seeks the following: 

1. Vacate the judgment of conviction. 2. Expunge Plaintiff’s

record. 3. Dismiss all charges, with prejudice. 4. Return all Plaintiffs

[sic] property. 5. Release Plaintiff from custody. 6 Find in fact that

Plaintiff was mistreated by Government. And/Or. 7. Order a new trial

and appoint a real attorney that knows how to at least, bring Plaintiff’s

Constitutional questions to light in District Court. 8. And any other

appropriate relief. 9. A finding of fact. 10. Require the Court that it

Must use State definitions of a State search and seizure and State

definitions of State Evidence process and Constitutional Process.

(Id., pp. 16-17). 

DISCUSSION

The execution or carrying out of an initially valid confinement is generally the

sole issue in a § 2241 action, as attacks on the validity of a conviction or sentence

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must be asserted on direct appeal or under 28 U.S.C. § 2255. See United States v.

Hayman, 342 U.S. 205, 72 S. Ct. 263, 96 L. Ed. 232 (1952); Broussard v. Lippman,

643 F.2d 1131 (5 Cir. Unit A Apr. 27, 1981); see also Chambers v. United States,

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106 F.3d 472, 474-75 (2 Cir. 1997) (articulating instances where a federal prisoner nd

may properly file a § 2241 petition); United States v. Jordan, 915 F.2d 622, 629 (11

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Cir. 1990); Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111 (5 Cir. 1990). Direct th

review of a federal conviction and sentence is obtained by filing a notice of appeal

in the underlying criminal case. A collateral attack on the validity of a federal

conviction is brought by filing a motion under 28 U.S.C. § 2255 in the court of

conviction. Jordan, 915 F.2d at 629; McGhee v. Hanberry, 604 F.2d 9, 10 (5 Cir. th

1979); Hadjuk v. United States, 764 F.2d 795 (11 Cir. 1985). Under limited th

circumstances, a provision of § 2255 permits a federal prisoner to file a habeas

petition pursuant to § 2241. 28 U.S.C. §§ 2241(a), 2255. That provision, known as

the “savings clause,” provides that

[a]n application for 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. Accordingly, a court may entertain a § 2241 petition attacking

custody resulting from a federally imposed sentence if the petitioner establishes that

the remedy provided for under § 2255 isinadequate or ineffective. 28 U.S.C. § 2255.

“The burden of coming forward with evidence affirmatively showing the inadequacy

In Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981) (en banc), the Eleventh Circuit 1 th

adopted as binding precedent all former Fifth Circuit decisions rendered before October 1, 1981.

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or ineffectiveness of the § 2255 remedy rests with the petitioner.” McGhee v.

Hanberry, 604 F.2d at 10. 

In Wofford v. Scott, 177 F.3d 1236 (11 Cir. 1999), the Eleventh Circuit th

explained that the savings clause applies when (1) the petitioner’s claim is based on

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

established that the prisoner was convicted of 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 [section] 2255 motion.” Id. at 1244. The

savings clause applies only if the prisoner has satisfied all three elements. See id.

This showing is significant because a prisoner does not “open the portal” to a section

2241 proceeding until he has demonstrated that the savings clause applies to him. See

id. n. 3. 

The petitioner in this case is asserting claims that are direct appeal or § 2255

claims, because they attack the validity of his conviction and sentence as imposed. 

Habeas corpus relief under § 2241 is not an additional, alternative or supplemental

remedy to direct review or collateral review under 28 U.S.C. § 2255, particularly

when the identical issues can, or could have, been raised on direct appeal or in a

timely § 2255 motion. See Bradshaw v. Story, 86 F.3d 164, 166 (10 Cir. 1996); th

Martin v. Hiatt, 174 F.2d 350 (5 Cir. 1949) (“[T]he writ of habeas corpus cannot be th

used as a substitute for a writ of error or an appeal.”); United States v. Flores, 616

F.2d 840, 842 (5 Cir. 1980) (petitioner’s appropriate remedy is under § 2255 and not

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§ 2241 where alleged errors occurred at or prior to sentencing). 

Furthermore, petitioner has made no showing that his claims meet the

three-prong test in Wofford. As petitioner has not demonstrated the inadequacy ofthe

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§ 2255 remedy, he should not be permitted to bring his claims by § 2241. 

Accordingly, it is respectfully RECOMMENDED:

1. That petitioner’s amended petition for writ of habeas corpus filed under 28

U.S.C. § 2241 (doc. 13) be DISMISSED with prejudice, as petitioner has not

demonstrated entitlement to proceed under that section.

2. That the Clerk be directed to close the file.

At Pensacola, Florida, this 16th day of June, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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 (11 Cir. 1988). th

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