Perkins v. USA ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41421
Conference Calendar
ROY PERKINS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA; JANET RENO,
U.S. Attorney General;
JONATHAN DOBRE, Warden,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CV-435
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June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Roy Perkins, Jr., # 25970-077, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 habeas corpus petition. After
having been denied 28 U.S.C. § 2255 relief and having been denied
permission to file a successive § 2255 motion, Perkins once again
sought to challenge the factual basis of his guilty plea to
carrying a firearm during and in relation to a drug-trafficking
crime, 18 U.S.C. § 924(c)(1)-(2). The district court held that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-41421
-2-
§ 2241 was not available to Perkins because he had already
challenged his conviction under the “carry” prong in a prior
§ 2255 motion.
Perkins argues that § 2255 is an inadequate and ineffective
remedy and that he should be allowed to bring his claim in a
§ 2241 habeas petition. In Hooker v. Sivley, 187 F.3d 680, 682
(5th Cir. 1999), this court recognized that other circuits have
allowed prisoners to use the “savings clause” of § 2255 to raise
a Bailey** claim in a § 2241 petition to circumvent the
successive requirements of the AEDPA. See In Re: Davenport, 147
F.3d 605, 611-12 (7th Cir. 1998); Triestman v. United States, 124
F.3d 361, 377-80 (2d Cir. 1997); In Re: Dorsainvil, 119 F.3d 245,
248-52 (3d Cir. 1997).
Perkins’ case is distinguishable. Perkins has had the
opportunity to raise his Bailey claim in a § 2255. The district
court granted § 2255 relief to Perkins and entered an order of
acquittal as to the “use” prong of his conviction, but denied
relief as to the “carry” prong. On appeal, this court held that
Bailey did not affect his claim under the “carry” prong, which
Perkins could have raised on direct appeal. United States v.
Perkins, No. 96-11457 (5th Cir. Jan. 23, 1998) (unpublished). In
Hooker and the cases cited therein, Bailey was decided after the
prisoners’ first § 2255 proceedings were completed, and they were
barred from bringing the claim in a successive § 2255 motion by
the AEDPA. Perkins raised his Bailey claim in his first
**
Bailey v. United States, 516 U.S. 137 (1995).
No. 99-41421
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§ 2255 motion. He has not been deprived of the opportunity to
present his claims.
The district court’s dismissal of Perkins’ § 2241 petition
is AFFIRMED. Perkins is warned that any further attempts to
attack his conviction that do not meet the criteria for filing a
successive § 2255 motion will be sanctioned.