United States District Court, N.D. Alabama, Northwestern Division
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE
case is presently pending before the court on Application for
Writ of Habeas Corpus Under 28 U.S.C. § 2241
[hereinafter Application], filed by petitioner Jerry Smith.
(Doc. 1; crim. doc. 37.) Smith has previously filed a §
2255 Motion to Vacate attacking his conviction and sentence.
He contends that the savings clause of §
allows his claim to proceed pursuant to § 2241. The
federal habeas proceeding under § 2241, the
applicability of § 2255(e)'s saving clause is
“a threshold jurisdictional issue, ” and the
saving clause “imposes a subject-matter jurisdictional
limit” on § 2241 applications. Samak v.
Warden, FCC Coleman-Medium, 766 F.3d 1271, 1273 (11th
Cir. 2014) (per curiam). We review the applicability of
§ 2255(e)'s saving clause de novo.
McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1081 (2017), cert. denied sub nom.,
___U.S. __, 138 S.Ct. 502, 199 L.Ed.2d 385 (2017). . . .
a federal prisoner may attack the validity of his conviction
or sentence by filing a motion to vacate under § 2255.
Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir.
2003). Under § 2255(e)'s saving clause, a prisoner
may seek relief through a § 2241 habeas application only
if “the remedy by [§ 2255] motion is inadequate or
ineffective to test the legality of his detention, ”
which is the petitioner's burden to establish. 28 U.S.C.
§ 2255(e); McCarthan, 851 F.3d at 1081. In
McCarthan, we concluded that the saving clause
permits a federal prisoner to proceed under § 2241 only
when: (1) he is “challeng[ing] the execution of his
sentence, such as the deprivation of good-time credits or
parole determinations”; (2) “the sentencing court
[was] unavailable, ” such as when the sentencing court
itself has been dissolved; or (3) “practical
considerations (such as multiple sentencing courts) might
prevent a petitioner from filing a motion to vacate.”
851 F.3d at 1092-93.
saving clause, however, does not allow access to § 2241
simply because a claim is barred by the rule against second
or successive § 2255 motions. Id. at 1092.
Consequently, a petitioner who has filed a previous §
2255 motion that has been denied may not circumvent the
restriction on successive § 2255 motions by filing an
application under § 2241. Id. at 1091-92.
liberally construing [petitioner's] claims, as we must,
his argument that he is “actually innocent” . . .
attacks the substance of his convictions and accompanying
sentences, and thus falls outside the scope of §
2255(e)'s saving clause as interpreted in
McCarthan. Accordingly, we conclude that the
district court properly dismissed his application for lack of
unlike § 2255 motions, § 2241 applications must be
brought in the district court for the district in which the
inmate is incarcerated. Fernandez v. United States,
941 F.2d 1488, 1495 (11th Cir. 1991). Any other district
court lacks jurisdiction over a § 2241 application.
Id. . . .
Zater v. Warden, FCI Miami Low, 740 Fed.Appx. 178,
179-80 (11th Cir. 2018), pet. for cert, filed (NO. 18-7022),
Nov 26, 2018. “[Section] 2241 provides a very
limited basis for habeas actions for federal prisoners in
that it allows prisoners to attack the
execution of a sentence rather than
the sentence or conviction itself.” Annamalai v.
Warden, No. 18-10548, 2019 WL 245813, *4 (11th Cir. Jan.
17, 2019)(citing Antonelli v. Warden, U.S.P.
Atlanta, 542 F.3d 1348, 1351-52 (11th Cir.
2008))(emphasis added; footnote omitted).
challenges his conviction and sentence on the ground that he
is actually innocent. Thus the court finds that Smith's
Application is in the nature of a § 2255 Motion to
Vacate. Previously, Smith had filed a Motion to Vacate
raising a claim of innocence based on the victim's
recantation, see Smith v. United States, No.
3:13-CV-8002, doc. 6 at 5 (N.D. Ala. Jan. 10, 2014).
2244(a) states, “No . . . district judge shall be
required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to
a judgment of a court of the United States if it appears that
the legality of such detention has been determined by a judge
or court of the United States on a prior application for a
writ of habeas corpus, except as provided in section
2255.” 28 U.S.C. § 2244(a). “Before a
second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”
Id. (b)(3)(A). “Without authorization, the
district court lacks jurisdiction to consider a second or
successive petition.” United States v. Holt,
417 F.3d 1172, 1175 (11th Cir. 2005)(citing Farris v.
United States, 333 F.3d 1211, 1216 (11th Cir. 2003)).
“[Section] 2244(a) applies to any petition for habeas
relief attacking the legality of the same detention, and
§ 2244(b)(3) requires that the petitioner obtain
permission from the court of appeals before filing any second
or successive petition attacking the same detention.”
McKinney v. Warden, FCC Coleman-Medium, 870
F.Supp.2d 1351, 1354 (M.D. Fla. 2012)(citing Darby v.
Hawk-Sawyer, 405 F.3d 942 (11th Cir.2005)),
aff'd, 562 Fed.Appx. 917 (11th Cir. 2014).
Smith must receive permission to file a second or successive
Motion to Vacate before this court has jurisdiction to
consider such Motion. See 28 U.S.C. § 2255(h).
Nothing in the Application indicates that Smith has
permission to proceed with a second or successive § 2255
Motion to Vacate alleging innocence based on the victim's
recantation. Therefore, this court is without jurisdiction to
consider his Application as a § 2255 Motion to Vacate
and this case is due to be dismissed.
assuming the Application is considered pursuant to §
2241, Smith is required to file the § 2241 Application
in the district court for the district in which he is
incarcerated. “[M]otions made pursuant to §2241
must be brought ‘only in the district court for the
district in which the inmate is incarcerated.'”
United States v. Kinsey, 393 Fed.Appx. 663, 664
(11th Cir. 2010)(quoting Fernandez v. United States,
941 F.2d 1488, 1495 (11th Cir. 1991); citing 28 U.S.C. §
2241(d)); see also United States v. Brown, 748
Fed.Appx. 286, 287 (11th Cir. 2019)(citing
Fernandez, 941 F.2d at 1495). Smith is incarcerated
in Forrest City, Arkansas, which is with the Eastern District
of Arkansas. Therefore, this court does not have jurisdiction
over his § 2241 application. See Fernandez, 941
F.2d at 1495.
these reasons, this court does not have jurisdiction to
consider Smith's Application, either as a § 2255
Motion to Vacate or as a § 2241 Application. Therefore,