	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-60229
(Summary Calendar)

DONALD HOOKER,
Petitioner-Appellant,
versus
J.L. SIVLEY, Federal Correctional Institution,
United States Department of Justice,
Federal Bureau of Prisons, Talladega, Alabama,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
--------------------
September 20, 1999
Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Donald Hooker (federal prisoner #09595-
042) appeals the denial of his 28 U.S.C. з 2241 petition, which was
treated by the district court as a 28 U.S.C. з 2255 motion and
dismissed as time-barred under that sections's one-year limitations
period. Hooker argues that the district court violated his
constitutional rights in construing his з 2241 petition as a з 2255
motion and dismissing it as time-barred. He contends that he
should have been allowed to proceed under з 2241 because з 2255
offers an "inadequate and ineffective" remedy in his case.
In his з 2241 petition, Hooker raised, among other things,
several challenges to his conviction under 18 U.S.C. з 924(c)(1)

for aiding and abetting the using and carrying of a firearm during
and in relation to a drug-trafficking crime. He included a claim
that he was "actually innocent" of the offense in light of the
Supreme Court's decision in Bailey v. United States, 516 U.S. 137
(1995). In 1993, prior to the Supreme Court's decision in Bailey,
Hooker unsuccessfully sought post-conviction relief under з 2255.
After Bailey was rendered, Hooker sought leave from us to file a
successive з 2255 motion, insisting that his з 924(c)(1) conviction
should be reversed in light of that decision. We denied him leave
to appeal because his claim did not involve newly discovered
evidence or a new rule of constitutional law.
Hooker subsequently filed the instant з 2241 petition in the
U.S. District Court for the Northern District of Alabama, the
district in which he is confined. The record shows that the
petition was transferred administratively, without a judicial
order, from the Northern District of Alabama to the Northern
District of Mississippi, the district court in which Hooker was
convicted. As previously stated, the district court for the
Northern District of Mississippi construed Hooker's petition as a
з 2255 motion and dismissed it as time-barred under that section's
one-year limitations period. Although з 2255 is the proper vehicle
for challenging the validity of a conviction and sentence, see
United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994), the
district court lacked jurisdiction to construe Hooker's petition as
a з 2255 motion because he had not received prior authorization
from us to file a successive з 2255 motion. See 28 U.S.C. зз 2244,
2

2255; United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998),
cert. denied, 119 S. Ct. 1156 (1999). The district court likewise
lacked jurisdiction to entertain Hooker's pleading as a з 2241
petition: Such a petition must be filed in the district where the
prisoner is incarcerated. See United States v. Weathersby, 958
F.2d 65, 66 (5th Cir. 1992). As Hooker is incarcerated in
Talladega, Alabama, only the district court for the Northern
District of Alabama would have jurisdiction to entertain his з 2241
petition. See 28 U.S.C. з 81(a)(4).
As noted, Hooker alleged in his petition that he is seeking
relief under з 2241 because з 2255 offered an "inadequate and
ineffective" remedy in his case. He pointed out that he could not
have presented his claim of "actual innocence" under Bailey in his
first з 2255 motion because Bailey had not been decided at that
time. He also contended that he is prohibited from raising his
Bailey claim in a second з 2255 motion because he is unable to
satisfy the requirements of the Antiterrorism and Effective Death
Penalty Act (AEDPA) that govern the filing of successive з 2255
motions. Hooker advances that same argument on appeal.
Hooker's argument is based on the "savings clause" of з 2255,
under which a prisoner may seek з 2241 relief in lieu of з 2255
relief if he can establish that "the remedy provided for under з
2255 is inadequate or ineffective to test the legality of his
detention." See Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,
1113 (5th Cir. 1990) (internal quotations and citation omitted); з
2255. We have not had occasion to address whether a prisoner may
3

use the "savings clause" of з 2255 to raise a Bailey claim in a з
2241 petition to circumvent the successive requirements established
by the AEDPA. See United States v. Sorrells, 145 F.3d 744, 748 n.2
(5th Cir. 1998). Some circuits have allowed prisoners to do so
under these circumstances. See, e.g., 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). Recently, the Eleventh Circuit, the circuit in
which Hooker's application was originally filed, adopted the
Seventh Circuit's approach in Davenport as it pertains to Bailey
claims, even though it did so in a case in which no Bailey issue
was raised. See Wofford v. Scott, 177 F.3d 1236, 1244 & n.3 (11th
Cir. 1999).
In his з 2241 petition, Hooker cites the Second Circuit's
decision in Triestman and the Third Circuit's decision in
Dorsainvil in support of his argument that he was entitled to seek
habeas relief under з 2241. Hooker did not, however, obtain a
judicial determination regarding his ability to proceed under
з 2241; rather, his petition was administratively transferred by
the clerk's office to the Northern District of Mississippi.
A clerk of court may not reject a pleading for lack of
conformity with requirements of form; only a judge may do that.
See McClellon v. Lone Star Gas Co., 66 F.3d 98, 101 (5th Cir.
1995). If a clerk of court may not reject a pleading for defects
of form, it follows a fortiori that a clerk of court may not reject
a pleading on substantive grounds, which is essentially what
4

occurred in the instant case. Hooker is entitled to a judicial
determination whether he may proceed under з 2241, and that
determination can only be made in the district where he is
incarcerated. See Weathersby, 958 F.2d at 66. Accordingly, the
district court's judgment is vacated, and Hooker's case is remanded
to the district court with instructions to transfer the case back
to the U.S. District Court for the Northern District of Alabama.
VACATED AND REMANDED.
5