IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60283

JAMES DAVID PACK,

Petitioner-Appellant,

versus

KHURSHID Z. YUSUFF,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi, Jackson

July 10, 2000

Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant James David Pack (Pack), a federal

prisoner currently incarcerated in Mississippi, was convicted in

1989 in United States District Court for the Eastern District of

Tennessee of possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g). Based on his prior state convictions for, among

other things, burglary and grand larceny, Pack was sentenced to a

mandatory minimum term of fifteen years’ imprisonment under the Armed

Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Thereafter,1 18 U.S.C. § 922(g) provides in relevant part:

“It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year; . . .

to ship or transport in interstate commerce or foreign commerce, or

possess in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been shipped or transported

in interstate or foreign commerce.”

2 in Tennessee state court, Pack filed an unsuccessful writ of error coram

nobis , in which he challenged the validity of prior state convictions.

He then filed in the Eastern District of Tennessee a motion for postconviction relief under 28 U.S.C. § 2255, which was denied. On July 27,

1998, Pack filed in the Southern District of Mississippi the instant

petition for habeas corpus relief under 28 U.S.C. § 2241. The district

court dismissed this petiti on with prejudice and Pack now appeals. We

affirm, with one minor modification.

Facts and Proceedings Below

Pack, a prisoner at the Federal Correctional Institution in Yazoo

City, Mississippi, was convicted in 1989 in the Eastern District of

Tennessee for violating 18 U.S. C. 922(g)(1), which prohibits the

carrying of a firearm by a convicted felon. 1 In 1979, Pack in Tennessee

state criminal court had pleaded guilty to and was convicted of four

separate burglary offenses and one grand larceny offense. In 1982, he

reappeared before the same state court and pleaded guilty to and was

convicted of four burglary offenses and one offense of possession of a

controlled substance with intent to sell. Based on these prior2 The ACCA, codified at 18 U.S.C. § 924(e)(1), provides in

relevant part:

“In the case of a person who violates section 922(g) of this title

and has three previous convictions by any court refered to in section

922(g)(1) of this t itle for a violent felony or a serious drug offense,

or both, committed on occasions different from one another, such person

shall be fined not more than $25,000 and imprisoned not less than

fifteen years, and, notwithstanding any other provision of law, the

court shall not suspend the sentence of, or grant a probationary

sentence to, such person with respect to the conviction under section

922(g).”

3 offenses, the Eastern District of Tennessee court in 1989 sentenced Pack

to a minimum mandatory term of imprisonment for fifteen years pursuant

to the ACCA. 2 Pack did not directly appeal his 1989 federal conviction

or sentence.

In May 1996, Pack filed in Tennessee state court a petition for

writ of error coram nobis

, in which he challenged the legality of his

1979 and 1982 state convictions. The Tennessee Court of Criminal

Appeals dismissed Pack’s petition as time-barred, whether construed as

a req uest for the writ or as a request for post-conviction relief. S ee

Pack v. State

, 1997 WL 531155 (Tenn. Crim. App. Aug. 29, 1997). On

April 27, 1997, Pack filed in the Eastern District of Tennessee a motion

for post-conviction relief under 28 U.S.C. § 2255, in which he alleged

that his federal sentence had been enhanced on the basis of

constitutionally infirm state convictions. Pack claimed that in

connection with both his 1979 and 1982 state convictions, he received

ineffective assistance of counsel and did not enter voluntary guilty

pleas. In the meantime, Pack filed an application for permission to4

appeal his state sentences; on May 4, 1998, the Tennessee Supreme Court

denied his application. On June 26, 1998, the Eastern District of

Tennessee court denied Pack’s section 2255 motion. That court concluded

that under Custis v. United States

, 114 S.Ct. 1732 (1994), Pack could

only bring a section 2255 challenge to his enhanced federal sentence by

first getting his prior state convictions vacated, either through state

proceedings or a federal habeas challenge to those convictions

themselves, and then moving to vacate his federal sentence pursuant to

se ction 2255. The Sixth Circuit denied Pack’s motion for a certificate

of appealability (COA) of the denial of his section 2255 motion.

Thereafter, on July 27, 1998, Pack filed in the Southern District

of Mississippi the instant habeas corpus motion pursuant to 28 U.S.C.

§ 2241, in which he alleged–again–that his current federal sentence

under the ACCA had been enhanced on the b asis of his allegedly

unconstitutional 1979 and 1982 state convictions. As he had in his

section 2255 mo tion, Pack claimed that numerous flaws in the

proceedings leading up the 1979 and 1982 convictions rendered those

convictions constitutionally invalid; these alleged flaws included

ineffective assistance of counsel , the state court’s failure to

conduct a proper colloquy prior to his pleading guilty, and his

failure actually to enter a guilty plea in his 1979 conviction. On

March 12, 1999, the district court dismissed Pack’s pet ition for

lack of jurisdiction. The district court observed that Pack’s

challenge to the validity of his sentence was governed by section3 A COA is not required to appeal the denial of a § 2241

petition. See Ojo v. INS , 106 F.3d 680, 681 (5th Cir. 1997).

5 2255, not section 2241, and that only t he court where he was

convicted and sentenced (the Eastern Dist rict of Tennessee), not

the court in the district where he was incarcerated (the Southern

District of Mississippi), had jurisdiction to hear such a

challenge. Pack now appeals the dismissal of his section 2241

petition. 3

Discussion

This Court reviews de novo a district court’s dismissal of a

section 2241 petition on the pleadings. S ee Venegas v. Henman

, 126

F.3d 760, 761 (5th Cir. 1997). We conclude that the district court

was correct in dismissing Pack’s section 2241 petition for lack of

jurisdiction.

A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a

motion to vacate, set aside, or correct a sentence pursuant to 28

U.S.C. § 2255 are distinct mechanisms for seeking post-conviction

relief. A section 2241 petition on behalf of a sentenced prisoner

attacks the manner in which a sentence is carried out or the prison

authorities’ determination of its duration, and must be filed in

the same district where the prisoner is incarcerated. S ee Bradshaw

v. Story

, 86 F.3d 164, 166 (10th Cir. 1996); Blau v. United States

,

566 F.2d 526, 527 (5th Cir. 1978) ( per curiam ). A section 2255

motion, by contrast, “provides the primary means of collateral6

attack on a federal sentence.” C ox v. Warden, Federal Detention

Ctr.

, 911 F.2d 1111, 1113 (5th Cir. 1990). Relief under section

2255 is warranted for errors cognizable on collateral review that

occurred “at or prior to sentencing.” I d. (internal quotation

omitted). A section 2255 motion must be filed in the sentencing

court. Id. at 1113 n.2.

This Court has observed that “[a] petition for a writ of

habeas corpus pursuant to [section] 2241 is not a substitute for a

motion under [section] 2255.” McGhee v. Hanberry , 604 F.2d 9, 10

(5th Cir. 1979) ( per curiam ); see also Williams v. United States

,

32 3 F.2d 672, 673 (10th Cir. 1963) ( p er curiam ) (noting that a

section 2241 petition “is not an additional, al ternative, or

supplemental remedy, to the relie f afforded by motion in the

sentencing court under § 2255”). A section 2241 petition that

seeks to challenge the validity of a federal sentence must either

be dismissed or construed as a section 2255 motion. See Ojo , 106

F.3d at 683 (“Because all of the errors Ojo alleges [occurred

before or during sentencing], they must be addressed in a § 2255

petition, and the only court with jurisdiction to hear that is the

court that sentenced him.”); Cox , 911 F.2d at 1114 (“The district

court’s dismissal of these grounds clearly was proper because they

concerned al leged errors that occurred at sentencing and,

therefore, may be remedied u nder section 2255.”); S olsona v.

Warden, F.C.I. , 821 F.2d 1129, 1131-32 (5th Cir. 1987).7

Section 2255 contains a “savings clause,” which acts as a

limited exception to this general rule. The savings clause

provides that:

“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

t hat such court has denied him relief, unless i t also

appears that the remedy b y motion is inadequate or

ineffective to test the legality of his detention.” 28

U.S.C. § 2255.

Accordingly, a section 2241 petition that seeks to challenge a

federal sentence or conviction–thereby effe ctively acting as a

section 2255 motion–may only be entertained when the petitioner

establishes that the remedy provided for under section 2255 is

inadequate or ineffective. See United States v. Hayman , 72 S.Ct.

263, 273 (1952); Charles v. Chandler , 180 F.3d 753, 755 (6th Cir.

1999) ( per curiam ); Bradshaw , 86 F.3d at 166; McGhee , 604 F.2d at

10.

The petitioner bears the burden of demonstrating that the

section 2255 remedy is inadequate or ineffective. M cGhee

, 604 F.2d

at 10. Pack contends that section 2255 relief is inadequate and

ineffective because he is time- barred from bringing a second or

successive section 2255 motion. In his reply to the government’s

motion to dismiss his section 2241 claim before the district court,

he also argued that section 2241 relief was appropriate because the

E astern District of Tennessee had already (erroneously, in his8

estimation) denied his sectio n 2255 motion. Neither of these

arguments demonstrates that the relief available to Pack from

section 2255 was inadequate or ineffective.

“Cour ts have found a remedy under 28 U.S.C. § 2255 to be

inadequate or ineffective only in extremely limited circumstances.”

Caravalho v. Pugh

, 177 F.3d 1177, 1178 (10th Cir. 1999). This

Court and other Courts of Appeals have consistently noted that “a

prior unsuccessful [section] 2255 motion is insufficient, in and of

itself, to show the inadequacy or ineffectiveness of the remedy.”

McGhee , 604 F.2d at 10; see also Tolliver v. Dobre , 211 F.3d 876,

878 (5th Cir. 2000) ( per curiam ); Charles

, 180 F.3d at 756;

Bradshaw

, 86 F.3d at 166; Tripati v. Henman , 843 F.2d 1160, 1162

(9th Cir. 1988); Z vonaric v. Mustain , 562 F.2d 570, 572 n.1 (8th

Ci r. 1977) ( p er curiam ). Neither will a claim of procedural bar

suffice to demonstrate that section 2255 relief is inadequate or

ineffective. S ee Caravalho

, 177 F.3d at 1179 (“[W]e agree with the

district court that the mere fact Caravalho is precluded from

filing a second § 2255 petition does not establish that the remedy

in § 2255 is inadequate.”); Triestman v. United States

, 124 F.3d

361, 376 (2d Cir. 1997) (noting that section 2255's substantive and

procedural barriers by themselves d o not establish that section

2255 is inadequate or ineffective). Similarly, a section 2255

motion “cannot become < inadequate or ineffective,’ thus permitting

the use of [section] 2241, merely because a petitioner cannot meet9

the AEDPA <

second or successive’ requirements.” U nited S t ates v.

Barrett , 178 F.3d 34, 50 (1st Cir. 1999), cert. denied , 120 S.Ct.

1208 (2000); see also Tolliver , 211 F.3d at 878; In re Davenport

,

147 F.3d 605, 608 (7th Cir. 1998); In re Dorsainvil

, 119 F.3d 245,

251 (3d Cir. 1997). To hold otherwise would flout Congress’s

obvious intent to give meaning to these p rocedural requirements.

A ruling that the section 2255 rem edy was inadequate or

ineffective, such that a petitioner could invoke section 2241,

simply because the petitioner’s prior section 2255 motion was

unsuccessful, or barred, or bec ause he could not file another

motion, would render those procedural requirements a nullity and

defy Congress’s clear attempt to limit successive habeas petitions.

Other circuits have indicated that a defendant may invoke the

“savings clause” exception only when the Constitution demands it,

or where otherwise Congress would violate the Suspension Clause by

imposing a conviction or sentence without allowing for section 2241

relief. S ee In re Davenport

, 147 F.3d at 609 (noting that section

2241 relief may be available to challenge a conviction or sentence

in order that the prisoner “cannot complain that the limitations in

[section] 2255 suspended whatever con stitutional right he might

have had, under the suspension clause or conceivably under the due

process clause, to be allowed to seek habeas corpus”). Cf

. Swain

v. Pressley

, 97 S.Ct. 1224, 1229-30 (1977) (prese nce of similar

“savings clause” in District of Columbia analogue to section 225510

defeats Suspension Clause challenge). And, there are opinions in

other circuits also indicating that a prisoner barred from filing

a second or successive section 2255 motion may be able to challenge

his conviction via section 2241 if he make s a “valid claim of

actual innocence.” S ee Cooper v. United States

, 199 F.3d 898, 901

(7th Cir. 1999); s ee also Charles

, 180 F.3d at 757 (noting the

possibility that a claim of actual innocence might permit a

petitioner under certain circumstances to utilize section 2241 “as

a means of circumventing [section] 2255's restrictions on the

filing of second or successive habeas petitions”).

Without determining the precise scope of the “savings clause,”

we note that Pack does not come within any even remotely arguable

con struction of it. Pack makes no claim approaching “actual

innocence,” and even if he made such a claim he has not been denied

wha t I n Re Davenport calls the “essential function” of habeas

relief: Pack was able to challenge the use of his 1979 and 1982

state convictions to enhance his federal sentence when he filed his

first section 2255 motion. Nothing in section 2255 prevented him

from questioning the legality of his federal sentence at that time.

Pack had “an unobstructed procedural shot at getting his sentence

vacated,” and was unsuccessful. I n re Davenport

, 147 F.3d at 609.

As noted above, merely failing to succeed in a section 2255 motion

does not establish the inadequacy or ineffectiveness of the section

2255 remedy. S ee McGhee

, 604 F.2d at 10. We conclude, therefore,4 Somewhat at odds (at least on first blush) with our conclusion

is Mo ore v. McCotter , 781 F.2d 1089 (5th Cir. 1986), which entertained

what the opinion refers to in passing as a § 2241 petition challenging

the use of prior state convictions that w ere used to enhance a current

state sentence. Despite its single use of the number ”2241,” M oore is

functionally a 28 U.S.C. § 2254 habeas review of a state conviction.

Whether this discrepancy is due to a simple error, or whether M oor e is

just an aberration, we do not read it to expand the limited scope of §

2241 relief. Moore does not address or acknowledge the appropriateness

of § 2241 as contrasted to § 2254 and it appears that was never in

issue. There is no indication that the M oore district court did not

have § 2254 jurisdiction.

5 Both §§ 2255 and 2241 require that at the time a prisoner files

a motion or petition, he must be “in custody” for the conviction or

sentence he wishes to challenge in order for the habeas court to have

jurisdiction. Usually, “custody” signifies incarceration or supervised

release, but in general it encompasses most restrictions on liberty

resulting from a criminal conviction. See Jones v. Cunningham , 83 S.Ct.

373, 375-76 (1963) . It is not readily apparent from the record whether

Pack’s sentences for his 1979 and 1982 convi ctions were expired at the

time he was sentenced under the ACCA in 1989.

11 that Pack may not a vail himself of section 2241 relief in this

case. 4

We observe that were we standing in the shoes of the District Court

for the Eastern District of Tennessee, we would have jurisdiction to

consider the merits of Pack’s claim. Recently, in U nited States v.

Clark , 203 F.3d 358 (5th Cir. 2000), we held that a petitioner in Pack’s

position, who wishes to challenge a federal sentence that has been

enhanced under the ACCA by allegedly unconstitutional prior state

convictions, for which the pr isoner is no longer “in custody,” 5 may do

so through a section 2255 motion. S ee Clark

, 203 F.3d at 360

(interpreting Custis v. United States

, 114 S.Ct. 1732 (1994)). In

Clark

, we explained that even though Clark was no longer “in6 We assumed for purposes of the opinion that Clark had

u nsuccessfully exhausted all of his state remedies. C lar k , 203

F.3d at 370. We also held that the § 2255 relief could be defeated on

the same bases that § 2254 relief could be if the petitioners were in

state custody and sought § 2254 relief therefrom.

12 custody” for purposes of his prior state convictions (because his

sentences for those convictions had expired), he was still “in

custody” for his present federal sentence and could challenge the

prior convictions by framing his attack as one on the present

sentence. S ee id. at 364 (citing Herbst v. Scott

, 42 F.3d 902, 905

(5th Cir. 1995); United States v. Nichols

, 30 F.3d 35, 37 (5th Cir.

1994); Thompson v. Collins

, 981 F.2d 259, 260 (5th Cir. 1993);

Allen v. Collins

, 924 F.2d 88 (5th Cir. 1991)); see also Willis v.

Collins , 989 F.2d 187, 188-89 (5th Cir. 1993) (allowing a section

2254 challe nge to current state sentence enhanced by allegedly

u nconstitutional prior state convictions for which the sentences

had expired). 6

If Pack had been sentenced by the district court below, were

no longer “in custody” for his 1979 and 1982 Tennessee convictions,

and had exhausted all his Tennessee state remedies, t hen the

district court, under Clark , would have had jurisdiction to hear

his section 2255 motion. S ee id. Pack, however, was sentenced in

the Sixth Circuit, which still interprets Custis to re quire that

prisoners ch allenging prior convictions used to enhance current

federal sentences under the ACCA first have their prior convictions

vacated, either through state proceedings or section 2254, and then13

return to challenge their federal sentences before the sentencing

court. S ee Turner v. United States

, 183 F.3 d 474, 477 (6th Cir.

1999). The Sixth Circuit holds that a prisoner in Pack’s position

is subject to this requirement even though he cannot meet the “in

custody” requirement of section 2254. S ee Smith v. United States

,

2000 WL 635001, at *4- 5 (6th Cir. May 18, 2000) (declining to

follow Clark in light of Turner ). The Sixth Circuit denied Pack’s

motion for a COA on the denial of his section 2255 motion. We do

not sit to review decisions of the Sixth Circuit or of the district

courts therein.

As a final matter, we modify the district court’s order in

only one minor respect. The district court dismissed Pack’s

petition with prejudice on the ground that it lacked jurisdiction

to hear the petition. Because the district court did not rule on

the merits of Pack’s claim, his petition should be dismissed with

prejudi ce regarding the jurisdictional issue only, and dismissed

without prejudice regarding all other issues. S ee F ED

. R. C IV

. P.

41(b); Costello v. United States , 81 S.Ct. 534, 545 (1961).

Conclusion

The district court’s dismissal of Pack’s section 2241 petition is

hereby modified so that it is with prejudice as to the jurisdictional

issue and is without prejudice otherwise, and as so modified is hereby

AFFIRMED.