UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-41420
Summary Calendar
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SYLVESTER TOLLIVER,
Petitioner-Appellant,
versus
JONATHON DOBRE,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
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May 3, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:
In challenging the dismissal of his 28 U.S.C. § 2241 habeas
petition, Sylvester Tolliver (federal prisoner # 24806-013)
contends that § 2241 is the proper method to collaterally attack
his sentence, because a 28 U.S.C. § 2255 motion would be denied as
successive, therefore rendering § 2255 ineffective and inadequate.
We AFFIRM.
I.
A jury convicted Tolliver for conspiracy to possess with
intent to distribute cocaine, aiding and abetting that possession,
and carrying a firearm during those drug trafficking offenses. The
conviction was affirmed on direct appeal. United States v.
Tolliver, No. 93-4438 (5th Cir. 18 Mar. 1994)(unpublished).
In 1996, Tolliver filed a § 2255 motion, challenging his
conviction for carrying a firearm. The motion was granted. His
request to file a second § 2255 motion was denied. (Pursuant to
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
Pub. L. No. 104-132, 110 Stat. 1214 (1996), permission must be
received from a court of appeals to file a successive § 2255
motion. 28 U.S.C. § 2244(b)(3)(A).)
In November 1999, Tolliver filed the § 2241 petition in issue,
contending § 2255 was inadequate or ineffective, because the motion
would be denied as successive. The petition was denied.
II.
Section § 2255 is the primary means of collaterally attacking
a federal sentence. Cox v. Warden, Fed. Detention Ctr., 911 F.2d
1111, 1113 (5th Cir. 1990). Section § 2241 is used to attack the
manner in which a sentence is executed. United States v. Cleto,
956 F.2d 83, 84 (5th Cir. 1992). A § 2241 petition which attacks
errors that occur at trial or sentencing is properly construed
under § 2255. Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32
(5th Cir. 1987). Nevertheless, a § 2241 petition attacking a
federally imposed sentence may be considered if the petitioner
establishes the remedy under § 2255 is inadequate or ineffective.
Cox, 911 F.2d at 1113.
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We join our sister circuits that have held that a prior
unsuccessful § 2255 motion, or the inability to meet AEDPA’s
“second or successive” requirement, does not make § 2255 inadequate
or ineffective. See Charles v. Chandler, 180 F.3d 753, 757-58 (6th
Cir. 1999); United States v. Barrett, 178 F.3d 34, 50 (1st Cir.
1999), cert. denied, ___U.S.___, 120 S.Ct. 1208 (2000); Caravalho
v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999); In re Davenport, 147
F.3d 605, 608 (7th Cir. 1998). Tolliver is simply attempting to
circumvent the limitations on filing successive § 2255 motions.
Correspondingly, his contention that § 2255 is inadequate or
ineffective, because it would be dismissed as successive, is
without merit.
III.
For the foregoing reasons, the denial of § 2241 habeas relief
is
AFFIRMED.
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