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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA 

PANAMA CITY DIVISION

IVAN RAY BEGAY,

 Petitioner, 

vs. Case No. 5:11cv230/RS/CJK 

UNITED STATES OF AMERICA, et al.,

 Respondents.

REPORT AND RECOMMENDATION

Before the Court is a petition for writ of habeas corpus filed under 28 U.S.C.

§ 2241. (Doc. 1). Respondent filed an answer, submitting relevant portions of the

record in petitioner’s underlying criminal case. (Doc. 9). Petitioner has replied (doc.

10) and filed several motions, variously titled, but seeking the same relief – release

fromprison. The matter isreferred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After

careful consideration, the undersigned concludes that petitioner has not demonstrated

entitlement to proceed under § 2241, and that this action should be dismissed.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a federal inmate confined at the Federal Correctional Institution in

Marianna, Florida, is currently serving a sentence imposed by the United States

District Court for the District of Arizona (“Arizona District Court”) in United States

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v. Begay, Case Number 3:00cr1222/PCT/PGR. (Doc. 9, Ex. 3). In Case No.

3:00cr1222, petitioner entered a counseled guilty plea to eight counts of aggravated

sexual abuse on two women on a Navajo Indian reservation. (Id.). Petitioner was

adjudicated guilty and sentenced on September 18, 2001, to 302 months

imprisonment followed by supervised release. (Id.). Petitioner’s conviction and

sentence were affirmed on direct appeal. United States v. Begay, 43 F. App’x 63 (9th

Cir. 2002). 

In 2010, petitioner filed a motion under 28 U.S.C. § 2255 in the Arizona

District Court, seeking to set aside his guilty plea on the grounds that the court lacked

jurisdiction over him as a member of the Navajo Tribe. (Doc. 9, Ex. 5). On March

7, 2011, the Arizona District Court dismissed petitioner’s § 2255 motion as timebarred. United States v. Begay, 2011 WL 833966 (D. Ariz. Mar. 7, 2011) (copy at

Doc. 9, Ex. 8). The court further noted that petitioner’s claim – that he was being

held illegally in federal custody and that his conviction and sentence were void

because the United States has no constitutional authority to criminally prosecute

members of the Navajo Nation – was meritless as a matter of law. Id. The Arizona

District Court denied a certificate of appealability. Id. Petitioner did not move in the

Ninth Circuit for a certificate of appealability.

On June 29, 2011, petitioner initiated this federal habeas proceeding by filing

a § 2241 petition in this Court. Although petitioner alleges several “grounds” in

support of his challenge, they all stem from the same underlying argument – that

petitioner’s conviction and sentence are void because the United States has no

constitutional authority to criminally prosecute members ofthe Navajo Nation. (Doc.

1, pp. 2-6). As relief, petitioner seeks the following: 

To enforce the Navajo Treaty laws, and to remand the case, and

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Writ to Secretary of Interior, for Indian Affairs, Commissioner of Indian

Affairs, in Washington D.C. for a Final Administrative Decision, also

to be Parole, and transfer to Navajo Nation Jurisdiction. To reverse

Custody, any decision made by U.S. President is concurrent with Indian

Commissioner decisions.

(Id., p. 6). 

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

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) (“Attacks on the underlying validity

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of a conviction must be brought under 28 U.S.C. § 2255, not 28 U.S.C. § 2241(c).”);

Sawyer v. Holder, 326 F.3d 1353, 1365 (11 Cir. 2003) (“Typically, a petitioner

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collaterally attacks the validity of his federal sentence by filing a petition under 28

U.S.C. § 2255.”); see also Chambers v. United States, 106 F.3d 472, 474-75 (2 Cir. nd

1997) (articulating instances where a federal prisoner may properly file a § 2241

petition). Direct 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 or sentence is brought by filing a motion under 28 U.S.C. §

2255 in the court of conviction. Sawyer, 326 F.3d at 1365; McGhee v. Hanberry, 604

F.2d 9, 10 (5 Cir. 1979). Under limited circumstances, § 2255 permits a federal

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prisoner to file a habeas petition under § 2241. 28 U.S.C. §§ 2241(a), 2255. Section

2255(e) provides:

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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An 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 appearsthat 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). The italicized language, known as the

“savings clause,” allows habeas corpus review of a claim, but only in the following

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.

Wofford v. Scott, 177 F.3d 1236, 1244 (11 Cir. 1999). The savings clause applies

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only if the petitioner has satisfied all three elements. Id. This showing is significant,

because a prisoner does not “open the portal” to a § 2241 proceeding until he has

demonstrated that the savings clause applies to him. Id. at 1244 n. 3; McGhee, 604

F.2d at 10. (“The burden of coming forward with evidence affirmatively showing the

inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner.”).

Here, petitioner’s claims are § 2255 claims, because petitioner challenges the

validity of his conviction and sentence as imposed, not how his sentence is being

executed. Petitioner has made no showing that his claims meet the three-prong test

in Wofford. The unavailability of relief under § 2255 because of a statute of

limitations bar, the prohibition against a second or successive § 2255 motion, or a

procedural bar, does not demonstrate that the § 2255 remedy is inadequate or

ineffective. Wofford, 177 F.3d at 1245 (holding that the savings clause “does not

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exist to free a prisoner of the effects of his failure to raise an available claim

earlier.”); Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11 Cir. 2005) (“A petitioner th

who has filed and been denied a previous § 2255 motion may not circumvent the

successive motion restrictions simply by filing a petition under § 2241.”). Because

petitioner has not demonstrated the inadequacy of the § 2255 remedy, he should not

be permitted to bring his claims by § 2241. See, e.g,. Wofford at 1245 (applying the

Wofford criteria to a claim that the trial court lacked jurisdiction over petitioner’s

underlying criminal conviction).

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus filed under 28 U.S.C. § 2241

(doc. 1) be DISMISSED with prejudice, as petitioner has not demonstrated

entitlement to proceed under that section.

2. That all pending motions be DENIED as moot.

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

At Pensacola, Florida, this 24th day of January, 2012.

/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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