UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-7978

ANTHONY PROVENZALE,

Petitioner – Appellant,

v.

UNITED STATES OF AMERICA,

Respondent – Appellee.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

Chief District Judge. (5:09-hc-02117-FL)

Submitted: June 23, 2010 Decided: July 16, 2010

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Anthony Provenzale, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Federal prisoner Anthony Provenzale appeals the 

district court’s order finding that his 28 U.S.C.A. § 2241 (West 

2006 & Supp. 2010) petition should have been brought as a 28 

U.S.C.A. § 2255 (West Supp. 2010) motion, and refusing to 

convert the petition because a § 2255 motion would be successive 

and unauthorized. We vacate the district court’s order and 

remand for further proceedings.

We find that the district court correctly determined 

that Provenzale should have brought his claims in a § 2255 

motion. A federal prisoner such as Provenzale who seeks to 

challenge the legality of his conviction or sentence generally 

must proceed pursuant to § 2255, with § 2241 petitions reserved 

for challenges to the execution of the prisoner’s sentence. In 

re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). In limited 

circumstances, however, § 2255 is “inadequate or ineffective” to 

test the legality of the detention. 

In those cases, the prisoner “may file a petition for 

a writ of habeas corpus in the district of confinement pursuant 

to § 2241.” In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). In 

Jones, this court concluded that a § 2255 motion is inadequate 

or ineffective, and a § 2241 petition may be used to test the 

legality of a conviction, only when certain criteria are met. 

See id. at 333-34. In his self-styled § 2241 petition, 
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Provenzale asked the district court to enter a new judgment 

acquitting him of his conviction or, in the least, reduce his 

sentence. However, Provenzale cannot satisfy the Jones

criteria. Thus, the district court correctly determined that 

Provenzale should have brought his claims in a § 2255 motion. 

We nonetheless find that the district court erred when 

it found that it could not convert Provenzale’s petition into a 

§ 2255 motion because he previously filed a § 2255 motion and 

failed to obtain certification to file a successive motion. It 

is true that “[a] second or successive [§ 2255] motion must be 

certified as provided in section 2244 by a panel of the 

appropriate court of appeals.” 28 U.S.C.A. § 2255(h) (West 

Supp. 2010). An initial habeas petition generally does not 

count for purposes of the “second or successive” rule, however, 

if it was voluntarily withdrawn by the petitioner. See, e.g., 

Thai v. United States, 391 F.3d 491, 495-96 (2d Cir. 2004); 

Haro-Arteaga v. United States, 199 F.3d 1195, 1196-97 (10th Cir. 

1999); Garrett v. United States, 178 F.3d 940, 942-43 (7th Cir. 

1999) (per curiam); Alexander v. Johnson, 163 F.3d 906, 908-09 

(5th Cir. 1998). Provenzale did not concede upon withdrawal of 

his first § 2255 motion that the motion lacked merit, Thai, 391 

F.3d at 495-96; Vancleave v. Norris, 150 F.3d 926, 928 (8th Cir. 

1998), and it is not apparent that he withdrew his motion to 

obtain a tactical advantage in the face of impending defeat, 
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Garrett, 178 F.3d at 943. Thus, we find that Provenzale’s 

original § 2255 motion does not bar the filing of another § 2255 

motion without pre-filing authorization, and that the § 2241 

petition may be converted into a § 2255 motion if Provenzale 

agrees.1

Despite the foregoing, the district court correctly 

observed that if it construed Provenzale’s petition as a § 2255 

motion, it would lack jurisdiction to entertain the motion 

because, having been sentenced in the District Court for the 

Northern District of Ohio, Provenzale was required to pursue his 

claims in that court. See 28 U.S.C.A. § 2255(a) (West Supp. 

2010). Accordingly, if Provenzale agrees to have his petition 

recharacterized, the district court must determine whether it 

would be in the interests of justice to transfer the motion to 

the Ohio district court. See 28 U.S.C. § 1631 (2006) (providing 

that if a court finds a lack of jurisdiction, “the court shall, 

if it is in the interest of justice, transfer such action or 

appeal to any other such court in which the action or appeal 

could have been brought at the time it was filed or 

noticed . . .”). 

 1 We note that before characterizing Provenzale’s filing as 

a § 2255 motion, the district court must provide Provenzale with 

the proper notice and an opportunity to respond as required by 

Castro v. United States, 540 U.S. 375, 377 (2003). See United 

States v. Blackstock, 513 F.3d 128, 132-35 (4th Cir. 2008). 
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Accordingly, although we deny Provenzale’s motion for 

appointment of counsel, we vacate the district court’s order and 

remand to the district court for further proceedings.2

 We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

VACATED AND REMANDED

 2 We, of course, express no opinion as to the timeliness or 

merits of Provenzale’s claims.