Anthony L. Jerdine v. United States ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 17, 2008
No. 08-11809 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-23153-CV-ASG
ANTHONY L. JERDINE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 17, 2008)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Anthony L. Jerdine, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas petition for failing to state a
cognizable claim. Jerdine argues that the district court that convicted him in his
underlying criminal case did not have subject matter jurisdiction because 18 U.S.C.
§ 3231, which establishes the district courts’ exclusive original jurisdiction in
federal criminal cases, never actually became law. Jerdine further argues that his
conviction is void because he was tried in a biased district court and that the
Supreme Court would be a fairer environment.
We review de novo the availability of habeas relief under § 2241. Cook v.
Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). Federal prisoners may file § 2241
petitions to collaterally attack the manner in which their convictions or sentences
are executed. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). These
collateral attacks, however, are typically brought under 28 U.S.C. § 2255. Id.Section 2255’s “savings clause” permits a federal prisoner to file a habeas petition
pursuant to § 2241 under limited circumstances. The savings clause provides that
[a]n application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it appears
that the applicant has failed to apply for relief, by motion, to the
court which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added). The prisoner has the burden of presenting
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“evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255
remedy . . . .” McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam)
(citations omitted). Furthermore,
[t]he savings clause of § 2255 applies to a claim when:
1) that claim is based on a retroactively applicable
Supreme Court decision; 2) the holding of that Supreme
Court decision establishes that the petitioner was convicted
for a nonexistent offense; and, 3) circuit law squarely
foreclosed such a claim at the time it otherwise should
have been raised in the petitioner’s trial, appeal, or
first § 2255 motion.
Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999).
Because Jerdine attacks the validity of his underlying conviction and
sentence, not the manner in which they were executed, he has failed
to state a claim for § 2241 habeas relief or to show that the remedy available under
§ 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.
§ 2255(e). Therefore, the district court properly dismissed Jerdine’s petition.
CONCLUSION
Upon review of the parties’ briefs and the record, we discern no reversible
error. Accordingly, we affirm the district court.
AFFIRMED.
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