Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHARLES RANDALL HARRISON,

 Petitioner,

vs. 3:10cv451/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. 1). Petitioner has paid the appropriate filing fee. Upon review

of the petition, it is the conclusion of court that the petition should be summarily denied.

Petitioner Charles Harrison reports that he was convicted of conspiracy to possess

with intent to distribute methamphetamine and amphetamines and possession of

amphetamines in this court in case 3:96cr57/RV. His conviction and sentence were

affirmed on direct appeal, and a motion for post conviction relief pursuant to 28 U.S.C. §

2255 was granted in part and denied in part. (Doc. 1 at 3). He brings the instant petition 1

pursuant to 28 U.S.C. § 2241, contending that the remedy under § 2255 was or is

inadequate or ineffective because he is challenging the constitutionality of the criminal

statute under which he was convicted and thus the legality of his continued incarceration. 

(Doc. 1 at 3). The basis for his claim is his assertion that Public Law 80-772, which

enacted the statute under which he was convicted, was never passed or signed in the

1 Among defendant’s post-conviction motions are two motions pursuant to § 2255, a petition for writ of audita

querela, two motions to be released from prison, numerous motions for discovery, a motion to dismiss the

criminal action for lack of subject matter jurisdiction, several motions for relief from judgment pursuant to Rule

60(b) and motions for reconsideration or appeals of the denial of these motions. See generally, 3:96cr57/RV.
Page 2 of 4

presence of a quorum or majority of both houses of Congress. He seeks dismissal of the

indictment against him in criminal case 3:96cr57/RV.

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 new claims in

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: 3:10cv451/RV/MD
Page 3 of 4

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 means a

th

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

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

imprisoned for conduct that was not prohibited. Darby, supra, (citing Sawyer v. Holder, 326

F.3d 1363, 1366 (11 Cir. 2003)). Once the petitioner establishes the application of the

th

savings clause to his case, the court must inquire as to whether he can establish actual

innocence of the crime for which he has been convicted. Wofford, 177 F.3d at 1244.

To the extent a petitioner claims that the instant claim does not fall within the

purview of 28 U.S.C. § 2255, he is mistaken. And, 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 th

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 (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 th

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,

Case No: 3:10cv451/RV/MD
Page 4 of 4

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

1999). 

Accordingly it is respectfully RECOMMENDED:

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

denied. 

At Pensacola, Florida this 12 day of November, 2010.

th

 /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: 3:10cv451/RV/MD