Opinion · Court of Appeals for the Ninth Circuit
Ernest Bernard Moore v. Janet Reno, Attorney General U.S. Department of Justice
185 F.3d 1054
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1999-08-05
- Topic
- general
concluding that the successive petition provision of the AEDPA does not render section 2255 inadequate or ineffective | holding that a petitioner may not circumvent the requirements of the AEDPA by filing a section 2241 petition | movant may not avoid the limitations imposed on successive petitions by styling his 21 petition as one pursuant to § 2241 rather than § 2255 | A “habeas petitioner may not avoid 25 the limitations imposed on successive petitions by styling his petition as one 26 pursuant to 28 U.S.C. § 2241” | dismissal of a successive motion pursuant to Section 2255 did not render such motion procedure an 24 | ineffective or inadequate remedy so as to authorize a federal prisoner to seek habeas 25| relief | “We have held that a state habeas petitioner may not avoid the limitations imposed on successive petitions by styling his petition as one pursuant to 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.” | “[A] 26 state habeas petitioner may not avoid the limitations imposed on successive 27 1 Ken Clark, Warden at California State Prison, Corcoran, where Petitioner is 28 currently incarcerated, is substituted for his predecessor. Fed. R. Civ. P. 25(d
Citator
- Cited by
- 69 opinions
Mark S. Hardiman, Assistant United States Attorney, Los Angeles, California, for the respondent-appellee.
[3] On February 18, 1998, Moore filed a petition for writ of habeas corpus in the district court pursuant to28 U.S.C. § 2241. Prior to this petition, Moore filed five separate28 U.S.C. § 2255motions challenging the same conviction.
[4] Moore filed his fifth § 2255 motion on April 30, 1997, making it subject to the Anti-TerrorismPage 1055and Effective Death Penalty Act of 1996 ("AEDPA"). Pub.L. No.104-132,110 Stat. 1214, 1217-26 (1996). In this motion, Moore argued that the district court violated Fed.R.Crim.P.11by failing to inform him of the maximum penalty of his crimes. The district court dismissed Moore's fifth § 2255 motion because he failed to obtain permission from the Ninth Circuit to file a successive motion pursuant to28 U.S.C. § 2244(b). Subsequently, this court denied Moore's request to file the successive motion.
[5] Moore then filed a § 2241 petition for habeas relief in the district court raising the same Rule 11 claim and, contending that he should be allowed to proceed under § 2241 because the successive motion provision of the AEDPA rendered28 U.S.C. § 2255inadequate or ineffective to test the legality of his detention. The district court dismissed this petition on the grounds that Moore had failed to show that § 2255 was an inadequate remedy. Moore now appeals.
[6] A federal habeas prisoner authorized to seek relief under28 U.S.C. § 2255may not petition for habeas relief pursuant to28 U.S.C. § 2241unless it appears that the § 2255 motion is inadequate or ineffective to test the legality of his detention. See United States v. Pirro,104 F.3d 297,299(9th Cir. 1997). Moore asks this court to conclude that federal habeas relief is an ineffective remedy because he was denied permission by this court to file a successive § 2255 motion.
[7] We decline to do so.
[8] We have held that a state habeas petitioner may not avoid the limitations imposed on successive petitions by styling his petition as one pursuant to28 U.S.C. § 2241rather than28 U.S.C. § 2254. See Greenawalt v. Stewart,105 F.3d 1287,1287-88(9th Cir. 1997). We extend the same reasoning to motions filed under28 U.S.C. § 2255and hold that the dismissal of a subsequent § 2255 motion pursuant to28 U.S.C. § 2244(b) does not render federal habeas relief an ineffective or inadequate remedy. See id.; Tripati,843 F.2d at 1162(stating that the authority of federal courts to grant habeas relief under § 2241 is limited by § 2255). Accordingly, the district court did not err by dismissing Moore's § 2241 petition.
[9] To the extent that Moore is asking this court to authorize the district court to consider his successive § 2255 motion, we decline to do so. Under the AEDPA, § 2244(b) requires the dismissal of a successive petition unless "the claim relies on a new rule of constitutional law" or "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence".28 U.S.C. § 2244(b)(1) and (2) (1998). Here, Moore has not demonstrated that he is relying on a new rule of constitutional law that has been made retroactive to habeas corpus or that he has evidence that could not have previously been discovered by due diligence. Accordingly, he has not made a prima facie showing that he has satisfied the requirements of section 2244(b).2
[10] AFFIRMED.