Mays v. Yusuff ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-60518
Summary Calendar
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GREGORY MAYS,
Petitioner-Appellant,
versus
KHURSHID Z. YUSUFF,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(5:99-CV-92-BrS)
_________________________________________________________________
May 3, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:1
Gregory C. Mays (federal prisoner #84949-01) appeals the
dismissal of his 28 U.S.C. § 2241 habeas petition, contending
primarily that his § 2241 petition is proper, because a 28 U.S.C.
§ 2255 petition would be dismissed as successive and, therefore, §
2255 is inadequate or ineffective.2
Mays was convicted in the Northern District of California of
conspiring to possess with intent to distribute cocaine, and
1
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this opinion should not be published and is not precedent except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.
2
This case was considered with Tolliver v. Dobre, No. 99-
41420, ___ F.3d ___ (5th Cir. 2000), which also concerns whether
the dismissal of a § 2255 motion as successive makes § 2255
inadequate or ineffective. The opinion in that case is being
issued simultaneously with this opinion.
attempting to possess cocaine. On direct appeal, his conviction
was affirmed. United States v. Mays, Nos. 91-10482, 91-10502, 1993
WL 272467, at *1 (9th Cir. 20 July 1993).
Mays filed a § 2255 motion in July 1994; it was denied. He
filed a second § 2255 motion; it was dismissed. The Ninth Circuit
affirmed the dismissal, holding the motion was repetitive of Mays’
direct appeal and an abuse of the writ. United States v. Mays,
Nos. 95-16837, 96-10188, 1996 WL 711433, at *1 (9th Cir. 5 Dec.
1996).
Mays filed a third § 2255 motion that was dismissed by the
district court, because Mays had not received permission from the
Ninth Circuit to file a successive motion. (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).) The Ninth Circuit affirmed the dismissal.
United States v. Mays, Nos. 98-10163, 98-10204, 1999 WL 191386, at
*1 (9th Cir.), cert. denied, ___U.S.___, 119 S. Ct. 2057 (1999).
Mays next filed the § 2241 petition in issue in the Southern
District of Mississippi. The district court dismissed the
petition, because Mays had not demonstrated that § 2255 was
inadequate or ineffective as a remedy. Therefore, § 2241 was
unavailable to collaterally attack the validity of Mays’
conviction.
Section § 2255 is the primary means of collaterally attacking
a federal sentence. Cox v. Warden, Fed. Detention Ctr., 911 F.2d
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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 petition filed under § 2241
which attacks errors that occur at trial or sentencing is properly
construed as a § 2255 motion. Solsona v. Warden, F.C.I., 821 F.2d
1129, 1131-32 (5th Cir. 1987). Nevertheless, a § 2241 petition
which attacks 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.
Needless to say, a prior unsuccessful § 2255 petition or the
inability to meet AEDPA’s “second or successive” requirement does
not make § 2255 ineffective. See Tolliver v. Dobre, note 2 supra.
Mays is attempting simply to circumvent the limitations on filing
successive § 2255 motions. Correspondingly, his contention that §
2255 is inadequate or ineffective is without merit.
In the alternative, Mays contends his § 2241 petition should
be transferred to the Northern District of California. A district
court has the authority to transfer a case in the interest of
justice to another district in which the action might have been
brought. 28 U.S.C. §§ 1404, 1406. “The district court has broad
discretion in deciding whether to order a transfer.” Caldwell v.
Palmetto State Sav. Bank of South Carolina, 811 F.2d 916, 919 (5th
Cir. 1987).
The Northern District of California lacks jurisdiction over
Mays’ § 2241 petition. Hooker v. Sivley, 187 F.3d 680, 682 (5th
Cir. 1999). And, if the petition is construed as a § 2255 motion,
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Mays’ lack of success in § 2255 proceedings in California suggests
that any transfer of a § 2255 motion would lead to yet another
dismissal. Accordingly, the district court did not abuse its
discretion in refusing the transfer.
AFFIRMED
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