TOLLIVER v. DOBRE

PER CURIAM:

In challenging the dismissal of his 28 U.S.C. § 2241 habeas petition, Sylvester Tolliver (federal prisoner # 24806-013) contends that 28 U.S.C. § 2241is the proper method to collaterally attack his sentence, because a 28 U.S.C. § 2255 motion would be denied as successive, therefore rendering 28 U.S.C. § 2255 ineffective and inadequate. We AFFIRM.

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 United States v. Tolliver , No. 93-4438 (5th Cir. 18 Mar. 1994) (unpublished).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 28 U.S.C. § 2255 motion, challenging his conviction for carrying a firearm. The motion was granted. His request to file a second 28 U.S.C. § 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 28 U.S.C. § 2255 motion. 28 U.S.C. § 2244(b)(3)(A).)

In November 1999, Tolliver filed the 28 U.S.C. § 2241 petition in issue, contending 28 U.S.C. § 2255 was inadequate or ineffective, because the motion would be denied as successive. The petition was denied.

Section 28 U.S.C. § 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 28 U.S.C. § 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 28 U.S.C. § 2241 petition which attacks errors that occur at trial or sentencing is properly construed under 28 U.S.C. § 2255 Solsona v. Warden, F.C.I. , 821 F.2d 1129, 1131-32 (5th Cir. 1987). Nevertheless, a 28 U.S.C. § 2255 petition attacking a federally imposed sentence may be considered if the petitioner establishes the remedy under 28 U.S.C. § 2255 is inadequate or ineffective. Cox , 911 F.2d at 1113.

We join our sister circuits that have held that a prior unsuccessful 28 U.S.C. § 2255 motion, or the inability to meet AEDPA's "second or successive" requirement, does not make 28 U.S.C. § 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 28 U.S.C. § 2255 motions. Correspondingly, his contention that 28 U.S.C. § 2255 is inadequate or ineffective, because it would be dismissed as successive, is without merit.

For the foregoing reasons, the denial of 28 U.S.C. § 2241 habeas relief is

AFFIRMED.