dissenting.
I dissent because the record demonstrates Abdullah did not have an adequate opportunity to present his arguments for a remedy under § 2255.
The background that underlies my views is set forth in Judge Heaney’s dissent in Abdullah v. United States, 240 F.3d 683, 687-88 (8th Cir.2001), cert. denied, 534 U.S. 923, 122 S.Ct. 278, 151 L.Ed.2d 204 (2001), and they are as follows: (1) Abdullah’s conviction is invalid after Bailey and Bousley; (2) Abdullah timely filed a pro se motion raising the Bailey issue; (3) the district court disregarded Abdullah’s motion; (4) the district court returned Abdullah’s motion to his attorney (without notifying Abdullah); and (5) Abdullah’s attorney failed to assert the Bailey issue in the pending § 2255 petition because of apparent illness. I repeat those essential matters in more detail.
Abdullah received no effective remedy under § 2255, because the district court barred him of the opportunity to present his argument for a remedy. Abdullah filed a pro se motion, which the district court denied without considering the contents. The district court sent Abdullah’s pro se motion to Abdullah’s attorney, without notifying Abdullah. Because the district court did not return the motion to Abdul-lah, Abdullah could reasonably believe that the district court was considering his motion. Abdullah’s lawyer may not have acted on the motion because of illness, but we cannot know the lawyer’s reason for his inaction because he has since died.
In addition, the clerk of the district court provided Abdullah with a confusing explanation about the pro se motion, which may have led Abdullah, a person with little knowledge regarding the intricacies of the court system, to believe the substance of his motion would be acted upon by the district court. This probable belief is shown by Abdullah’s second pro se motion that he filed with the district court on June 18, 1997, in which Abdullah questioned why the Bailey issue had not been addressed by the district court. The combined effect of these circumstances prevented Abdullah from seeking an effective remedy under § 2255 for his unlawful conviction for use of a firearm pursuant to Bailey.
Under the majority opinion Abdullah must continue serving time for this invalid conviction for want of a remedy in the courts of the United States. I disagree.
In limited circumstances § 2241 may provide a petitioner an avenue of relief where § 2255 is inadequate or ineffective to test the legality of a conviction. As the majority notes, the Second, Third, Fourth, Fifth, and Seventh Circuits have all indicated that in limited circumstances § 2241 may be used to raise a Bailey claim where *965a petitioner had not had an opportunity to challenge a firearm conviction that should be set aside under Bailey. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997); Triestman v. United States, 124 F.3d 361, 377-80 (2d Cir.1997); In re Davenport, 147 F.3d 605, 610 (7th Cir.1998); In re Jones, 226 F.3d 328, 333-34 (4th Cir.2000); Reyes-Requena v. United States, 243 F.3d 893, 904-06 (5th Cir.2001). In each of the cases cited, the prisoners filed a § 2255 petition for relief before the Bailey opinion had issued and when it would have been futile to challenge the “use” prong of the 924(c) firearm statute. These circuits stated that the issue could not be raised by a second petition for § 2255 relief based on Bailey, but that the prisoner could file for relief under the habeas corpus statute § 2241, because relief under § 2255 was not available. Here, while Abdullah sought § 2255 relief after Bailey, the circumstances were such that the actions of the district court and the district court’s clerk effectively denied Ab-dullah the opportunity to seek relief under § 2255. The rationale for allowing § 2241 relief in the eases (In re Dorsainvil, 119 F.3d at 251; Triestman, 124 F.3d at 377-80; In re Davenport, 147 F.3d at 610; In re Jones, 226 F.3d at 333-34; Reyes-Requena, 243 F.3d at 904-06) should apply to Abdullah’s situation. Abdullah did all that can be reasonably expected of a defendant, and the district court’s actions effectively foreclosed Abdullah, on purely procedural grounds, from the opportunity to present his claim. In this unusual case, petitioner should be allowed to seek relief in his § 2241 (habeas) petition. It is a complete miscarriage of justice for Abdullah to continue serving time in prison for a conviction that is invalid after Bailey.
Accordingly, I would reverse the dismissal of the petition for habeas corpus and remand to the district court for a decision on the merits of petitioner’s claims.