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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-60283

JAMES DAVID PACK,
Petitioner-Appellant,
versus
KHURSHID Z. YUSUFF,
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Mississippi, Jackson

July 10, 2000
Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant James David Pack (Pack), a federal
prisoner currently incarcerated in Mississippi, was convicted in
1989 in United States District Court for the Eastern District of
Tennessee of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g). Based on his prior state convictions for, among
other things, burglary and grand larceny, Pack was sentenced to a
mandatory minimum term of fifteen years' imprisonment under the Armed
Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Thereafter,

in Tennessee state court, Pack filed an unsuccessful writ of error coram
nobis, in which he challenged the validity of prior state convictions.
He then filed in the Eastern District of Tennessee a motion for post-
conviction relief under 28 U.S.C. § 2255, which was denied. On July 27,
1998, Pack filed in the Southern District of Mississippi the instant
petition for habeas corpus relief under 28 U.S.C. § 2241. The district
court dismissed this petition with prejudice and Pack now appeals. We
affirm, with one minor modification.
Facts and Proceedings Below
Pack, a prisoner at the Federal Correctional Institution in Yazoo
City, Mississippi, was convicted in 1989 in the Eastern District of
Tennessee for violating 18 U.S.C. 922(g)(1), which prohibits the
carrying of a firearm by a convicted felon.1 In 1979, Pack in Tennessee
state criminal court had pleaded guilty to and was convicted of four
separate burglary offenses and one grand larceny offense. In 1982, he
reappeared before the same state court and pleaded guilty to and was
convicted of four burglary offenses and one offense of possession of a
controlled substance with intent to sell. Based on these prior
1 18 U.S.C. § 922(g) provides in relevant part:
"It shall be unlawful for any person
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year; . . .
to ship or transport in interstate commerce or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or transported
in interstate or foreign commerce."
2

offenses, the Eastern District of Tennessee court in 1989 sentenced Pack
to a minimum mandatory term of imprisonment for fifteen years pursuant
to the ACCA.2 Pack did not directly appeal his 1989 federal conviction
or sentence.
In May 1996, Pack filed in Tennessee state court a petition for
writ of error coram nobis, in which he challenged the legality of his
1979 and 1982 state convictions. The Tennessee Court of Criminal
Appeals dismissed Pack's petition as time-barred, whether construed as
a request for the writ or as a request for post-conviction relief. See
Pack v. State, 1997 WL 531155 (Tenn. Crim. App. Aug. 29, 1997). On
April 27, 1997, Pack filed in the Eastern District of Tennessee a motion
for post-conviction relief under 28 U.S.C. § 2255, in which he alleged
that his federal sentence had been enhanced on the basis of
constitutionally infirm state convictions. Pack claimed that in
connection with both his 1979 and 1982 state convictions, he received
ineffective assistance of counsel and did not enter voluntary guilty
pleas. In the meantime, Pack filed an application for permission to
2 The ACCA, codified at 18 U.S.C. § 924(e)(1), provides in
relevant part:
"In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court refered to in section
922(g)(1) of this title for a violent felony or a serious drug offense,
or both, committed on occasions different from one another, such person
shall be fined not more than $25,000 and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the
court shall not suspend the sentence of, or grant a probationary
sentence to, such person with respect to the conviction under section
922(g)."
3

appeal his state sentences; on May 4, 1998, the Tennessee Supreme Court
denied his application. On June 26, 1998, the Eastern District of
Tennessee court denied Pack's section 2255 motion. That court concluded
that under Custis v. United States, 114 S.Ct. 1732 (1994), Pack could
only bring a section 2255 challenge to his enhanced federal sentence by
first getting his prior state convictions vacated, either through state
proceedings or a federal habeas challenge to those convictions
themselves, and then moving to vacate his federal sentence pursuant to
section 2255. The Sixth Circuit denied Pack's motion for a certificate
of appealability (COA) of the denial of his section 2255 motion.
Thereafter, on July 27, 1998, Pack filed in the Southern District
of Mississippi the instant habeas corpus motion pursuant to 28 U.S.C.
§ 2241, in which he allegedagainthat his current federal sentence
under the ACCA had been enhanced on the basis of his allegedly
unconstitutional 1979 and 1982 state convictions. As he had in his
section 2255 motion, Pack claimed that numerous flaws in the
proceedings leading up the 1979 and 1982 convictions rendered those
convictions constitutionally invalid; these alleged flaws included
ineffective assistance of counsel, the state court's failure to
conduct a proper colloquy prior to his pleading guilty, and his
failure actually to enter a guilty plea in his 1979 conviction. On
March 12, 1999, the district court dismissed Pack's petition for
lack of jurisdiction. The district court observed that Pack's
challenge to the validity of his sentence was governed by section
4

2255, not section 2241, and that only the court where he was
convicted and sentenced (the Eastern District of Tennessee), not
the court in the district where he was incarcerated (the Southern
District of Mississippi), had jurisdiction to hear such a
challenge. Pack now appeals the dismissal of his section 2241
petition.3
Discussion
This Court reviews de novo a district court's dismissal of a
section 2241 petition on the pleadings. See Venegas v. Henman, 126
F.3d 760, 761 (5th Cir. 1997). We conclude that the district court
was correct in dismissing Pack's section 2241 petition for lack of
jurisdiction.
A writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a
motion to vacate, set aside, or correct a sentence pursuant to 28
U.S.C. § 2255 are distinct mechanisms for seeking post-conviction
relief. A section 2241 petition on behalf of a sentenced prisoner
attacks the manner in which a sentence is carried out or the prison
authorities' determination of its duration, and must be filed in
the same district where the prisoner is incarcerated. See Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Blau v. United States,
566 F.2d 526, 527 (5th Cir. 1978) (per curiam). A section 2255
motion, by contrast, "provides the primary means of collateral
3 A COA is not required to appeal the denial of a § 2241
petition. See Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).
5

attack on a federal sentence." Cox v. Warden, Federal Detention
Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Relief under section
2255 is warranted for errors cognizable on collateral review that
occurred "at or prior to sentencing." Id. (internal quotation
omitted). A section 2255 motion must be filed in the sentencing
court. Id. at 1113 n.2.
This Court has observed that "[a] petition for a writ of
habeas corpus pursuant to [section] 2241 is not a substitute for a
motion under [section] 2255." McGhee v. Hanberry, 604 F.2d 9, 10
(5th Cir. 1979) (per curiam); see also Williams v. United States,
323 F.2d 672, 673 (10th Cir. 1963) (per curiam) (noting that a
section 2241 petition "is not an additional, alternative, or
supplemental remedy, to the relief afforded by motion in the
sentencing court under § 2255"). A section 2241 petition that
seeks to challenge the validity of a federal sentence must either
be dismissed or construed as a section 2255 motion. See Ojo, 106
F.3d at 683 ("Because all of the errors Ojo alleges [occurred
before or during sentencing], they must be addressed in a § 2255
petition, and the only court with jurisdiction to hear that is the
court that sentenced him."); Cox, 911 F.2d at 1114 ("The district
court's dismissal of these grounds clearly was proper because they
concerned alleged errors that occurred at sentencing and,
therefore, may be remedied under section 2255."); Solsona v.
Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987).
6

Section 2255 contains a "savings clause," which acts as a
limited exception to this general rule. The savings clause
provides that:
"An 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.
Accordingly, a section 2241 petition that seeks to challenge a
federal sentence or convictionthereby effectively acting as a
section 2255 motionmay only be entertained when the petitioner
establishes that the remedy provided for under section 2255 is
inadequate or ineffective. See United States v. Hayman, 72 S.Ct.
263, 273 (1952); Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.
1999) (per curiam); Bradshaw, 86 F.3d at 166; McGhee, 604 F.2d at
10.
The petitioner bears the burden of demonstrating that the
section 2255 remedy is inadequate or ineffective. McGhee, 604 F.2d
at 10. Pack contends that section 2255 relief is inadequate and
ineffective because he is time-barred from bringing a second or
successive section 2255 motion. In his reply to the government's
motion to dismiss his section 2241 claim before the district court,
he also argued that section 2241 relief was appropriate because the
Eastern District of Tennessee had already (erroneously, in his
7

estimation) denied his section 2255 motion. Neither of these
arguments demonstrates that the relief available to Pack from
section 2255 was inadequate or ineffective.
"Courts have found a remedy under 28 U.S.C. § 2255 to be
inadequate or ineffective only in extremely limited circumstances."
Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). This
Court and other Courts of Appeals have consistently noted that "a
prior unsuccessful [section] 2255 motion is insufficient, in and of
itself, to show the inadequacy or ineffectiveness of the remedy."
McGhee, 604 F.2d at 10; see also Tolliver v. Dobre, 211 F.3d 876,
878 (5th Cir. 2000) (per curiam); Charles, 180 F.3d at 756;
Bradshaw, 86 F.3d at 166; Tripati v. Henman, 843 F.2d 1160, 1162
(9th Cir. 1988); Zvonaric v. Mustain, 562 F.2d 570, 572 n.1 (8th
Cir. 1977) (per curiam). Neither will a claim of procedural bar
suffice to demonstrate that section 2255 relief is inadequate or
ineffective. See Caravalho, 177 F.3d at 1179 ("[W]e agree with the
district court that the mere fact Caravalho is precluded from
filing a second § 2255 petition does not establish that the remedy
in § 2255 is inadequate."); Triestman v. United States, 124 F.3d
361, 376 (2d Cir. 1997) (noting that section 2255's substantive and
procedural barriers by themselves do not establish that section
2255 is inadequate or ineffective). Similarly, a section 2255
motion "cannot become <inadequate or ineffective,' thus permitting
the use of [section] 2241, merely because a petitioner cannot meet
8

the AEDPA <second or successive' requirements." United States v.
Barrett, 178 F.3d 34, 50 (1st Cir. 1999), cert. denied, 120 S.Ct.
1208 (2000); see also Tolliver, 211 F.3d at 878; In re Davenport,
147 F.3d 605, 608 (7th Cir. 1998); In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997). To hold otherwise would flout Congress's
obvious intent to give meaning to these procedural requirements.
A ruling that the section 2255 remedy was inadequate or
ineffective, such that a petitioner could invoke section 2241,
simply because the petitioner's prior section 2255 motion was
unsuccessful, or barred, or because he could not file another
motion, would render those procedural requirements a nullity and
defy Congress's clear attempt to limit successive habeas petitions.
Other circuits have indicated that a defendant may invoke the
"savings clause" exception only when the Constitution demands it,
or where otherwise Congress would violate the Suspension Clause by
imposing a conviction or sentence without allowing for section 2241
relief. See In re Davenport, 147 F.3d at 609 (noting that section
2241 relief may be available to challenge a conviction or sentence
in order that the prisoner "cannot complain that the limitations in
[section] 2255 suspended whatever constitutional right he might
have had, under the suspension clause or conceivably under the due
process clause, to be allowed to seek habeas corpus"). Cf. Swain
v. Pressley, 97 S.Ct. 1224, 1229-30 (1977) (presence of similar
"savings clause" in District of Columbia analogue to section 2255
9

defeats Suspension Clause challenge). And, there are opinions in
other circuits also indicating that a prisoner barred from filing
a second or successive section 2255 motion may be able to challenge
his conviction via section 2241 if he makes a "valid claim of
actual innocence." See Cooper v. United States, 199 F.3d 898, 901
(7th Cir. 1999); see also Charles, 180 F.3d at 757 (noting the
possibility that a claim of actual innocence might permit a
petitioner under certain circumstances to utilize section 2241 "as
a means of circumventing [section] 2255's restrictions on the
filing of second or successive habeas petitions").
Without determining the precise scope of the "savings clause,"
we note that Pack does not come within any even remotely arguable
construction of it. Pack makes no claim approaching "actual
innocence," and even if he made such a claim he has not been denied
what In Re Davenport calls the "essential function" of habeas
relief: Pack was able to challenge the use of his 1979 and 1982
state convictions to enhance his federal sentence when he filed his
first section 2255 motion. Nothing in section 2255 prevented him
from questioning the legality of his federal sentence at that time.
Pack had "an unobstructed procedural shot at getting his sentence
vacated," and was unsuccessful. In re Davenport, 147 F.3d at 609.
As noted above, merely failing to succeed in a section 2255 motion
does not establish the inadequacy or ineffectiveness of the section
2255 remedy. See McGhee, 604 F.2d at 10. We conclude, therefore,
10

that Pack may not avail himself of section 2241 relief in this
case.4
We observe that were we standing in the shoes of the District Court
for the Eastern District of Tennessee, we would have jurisdiction to
consider the merits of Pack's claim. Recently, in United States v.
Clark, 203 F.3d 358 (5th Cir. 2000), we held that a petitioner in Pack's
position, who wishes to challenge a federal sentence that has been
enhanced under the ACCA by allegedly unconstitutional prior state
convictions, for which the prisoner is no longer "in custody,"5 may do
so through a section 2255 motion. See Clark, 203 F.3d at 360
(interpreting Custis v. United States, 114 S.Ct. 1732 (1994)). In
Clark, we explained that even though Clark was no longer "in
4 Somewhat at odds (at least on first blush) with our conclusion
is Moore v. McCotter, 781 F.2d 1089 (5th Cir. 1986), which entertained
what the opinion refers to in passing as a § 2241 petition challenging
the use of prior state convictions that were used to enhance a current
state sentence. Despite its single use of the number "2241," Moore is
functionally a 28 U.S.C. § 2254 habeas review of a state conviction.
Whether this discrepancy is due to a simple error, or whether Moore is
just an aberration, we do not read it to expand the limited scope of §
2241 relief. Moore does not address or acknowledge the appropriateness
of § 2241 as contrasted to § 2254 and it appears that was never in
issue. There is no indication that the Moore district court did not
have § 2254 jurisdiction.
5 Both §§ 2255 and 2241 require that at the time a prisoner files
a motion or petition, he must be "in custody" for the conviction or
sentence he wishes to challenge in order for the habeas court to have
jurisdiction. Usually, "custody" signifies incarceration or supervised
release, but in general it encompasses most restrictions on liberty
resulting from a criminal conviction. See Jones v. Cunningham, 83 S.Ct.
373, 375-76 (1963). It is not readily apparent from the record whether
Pack's sentences for his 1979 and 1982 convictions were expired at the
time he was sentenced under the ACCA in 1989.
11

custody" for purposes of his prior state convictions (because his
sentences for those convictions had expired), he was still "in
custody" for his present federal sentence and could challenge the
prior convictions by framing his attack as one on the present
sentence. See id. at 364 (citing Herbst v. Scott, 42 F.3d 902, 905
(5th Cir. 1995); United States v. Nichols, 30 F.3d 35, 37 (5th Cir.
1994); Thompson v. Collins, 981 F.2d 259, 260 (5th Cir. 1993);
Allen v. Collins, 924 F.2d 88 (5th Cir. 1991)); see also Willis v.
Collins, 989 F.2d 187, 188-89 (5th Cir. 1993) (allowing a section
2254 challenge to current state sentence enhanced by allegedly
unconstitutional prior state convictions for which the sentences
had expired).6
If Pack had been sentenced by the district court below, were
no longer "in custody" for his 1979 and 1982 Tennessee convictions,
and had exhausted all his Tennessee state remedies, then the
district court, under Clark, would have had jurisdiction to hear
his section 2255 motion. See id. Pack, however, was sentenced in
the Sixth Circuit, which still interprets Custis to require that
prisoners challenging prior convictions used to enhance current
federal sentences under the ACCA first have their prior convictions
vacated, either through state proceedings or section 2254, and then
6 We assumed for purposes of the opinion that Clark had
unsuccessfully exhausted all of his state remedies. Clark, 203
F.3d at 370. We also held that the § 2255 relief could be defeated on
the same bases that § 2254 relief could be if the petitioners were in
state custody and sought § 2254 relief therefrom.
12

return to challenge their federal sentences before the sentencing
court. See Turner v. United States, 183 F.3d 474, 477 (6th Cir.
1999). The Sixth Circuit holds that a prisoner in Pack's position
is subject to this requirement even though he cannot meet the "in
custody" requirement of section 2254. See Smith v. United States,
2000 WL 635001, at *4-5 (6th Cir. May 18, 2000) (declining to
follow Clark in light of Turner). The Sixth Circuit denied Pack's
motion for a COA on the denial of his section 2255 motion. We do
not sit to review decisions of the Sixth Circuit or of the district
courts therein.
As a final matter, we modify the district court's order in
only one minor respect. The district court dismissed Pack's
petition with prejudice on the ground that it lacked jurisdiction
to hear the petition. Because the district court did not rule on
the merits of Pack's claim, his petition should be dismissed with
prejudice regarding the jurisdictional issue only, and dismissed
without prejudice regarding all other issues. See FED. R. CIV. P.
41(b); Costello v. United States, 81 S.Ct. 534, 545 (1961).
Conclusion
The district court's dismissal of Pack's section 2241 petition is
hereby modified so that it is with prejudice as to the jurisdictional
issue and is without prejudice otherwise, and as so modified is hereby
AFFIRMED.
13