Tolliver v. Dobre

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                           __________________

                             No. 99-41420
                           Summary Calendar
                          __________________

                         SYLVESTER TOLLIVER,

                                                 Petitioner-Appellant,

                                versus

                            JONATHON DOBRE,

                                             Respondent-Appellee.
_________________________________________________________________

             Appeal from the United States District Court
                   for the Eastern District of Texas

_________________________________________________________________
                         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Tolliver, No. 93-4438 (5th Cir. 18 Mar. 1994)(unpublished).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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