Frees v. Maye
Frees v. Maye
Opinion of the Court
John P. Frees, federal prisoner # 17729-047, appeals the denial of his 28 U.S.C. § 2241 petition for habeas corpus relief. Because he has failed to show that he is entitled to relief under section 2241, we affirm.
The petition before us today is Frees’s most recent challenge to his current incarceration. In 2003, Frees pleaded guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846. Judgment was entered on August 13, 2003 in the United States District Court for the District of Nebraska, and Frees was sentenced to 252 months imprisonment, to be followed by a 10-year term of supervised release. After sentencing Frees signed the notice of his right to appeal presented by the clerk of the district court. He did not, however, enter a notice to appeal his conviction or sentence at this time.
On October 24, 2005, Frees filed several pleadings challenging his conviction. These were construed by the district court and the Eighth Circuit as a notice of appeal, and consequently dismissed as untimely. In 2008, Frees filed a pleading entitled “Certificate of Appealability” (COA). Because it named the district court judge as defendant, however, it was construed as a separate civil action rather than a COA and dismissed without prejudice. In October 2009, Frees again contested his conviction by seeking a writ of mandamus to compel the district court clerk to file his notice of appeal. The Eighth Circuit denied without opinion.
Frees now challenges his conviction through a section 2241 petition, claiming he is in custody in violation of the Constitution and laws, of the United States. The district court, in accordance with the magistrate judge’s report and recommendation, concluded that Frees failed to show he was entitled to relief under section 2241 and denied the petition. Frees timely filed a notice of appeal.
This Court reviews the denial of a section 2241 petition on the pleadings de novo.
A federal prisoner may challenge his sentence under either 28 U.S.C. §§ 2241 or 2255. Though closely related, these two provisions are “distinct mechanisms for seeking post-conviction relief.”
In his section 2241 petition, Frees presents four arguments against his conviction and sentence: (1) he was improperly denied his right to appeal by the district court judge who presided over his conviction and sentencing; (2) his guilty plea was involuntary; (3) he did not receive effective assistance of counsel; and (4) his confession was inadequate. By his own admission, each claim attacks the validity of his conviction and sentence rather than the execution of the sentence.
The savings clause is a limited exception to the rule that a section 2241 petition may not be used to challenge the validity of a federal sentence and conviction.
This Circuit has previously identified the limited circumstances under which the savings clause of section 2255 applies. To fall under this provision, petitioner must claim actual innocence and retroactivity.
Frees does not make any claims that could fulfill these requirements. Instead, he argues that 28 U.S.C. § 2255(e) must apply because otherwise his petition will not be heard, resulting in a miscarriage of justice. This argument is unavailing. We narrowly construe the savings clause, less it “create a detour around § 2255 such that § 2255 is rendered a nullity.”
Accordingly, the judgment of the district court is AFFIRMED.
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 Cm R. 47.5.4.
. See Pack v. Yustiff, 218 F.3d 448, 451 (5th Cir. 2000) (citing Venegas v. Henman, 126 F.3d
. Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).
. Pack, 218 F.3d at 451.
. Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001) (citing Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000)).
. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000) (quoting Pack, 218 F.3d at 451).
. Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (quoting United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980)).
. 28 U.S.C. § 2255(b).
. Cox, 911 F.2d at 1113.
. Id. at 1113 n. 2.
. Pack, 218 F.3d at 452.
. See e.g., United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); Pack, 218 F.3d at 451. .
. Pack, 218 F.3d at 452.
. See, infra, discussions accompanying n. 5 & 9.
. Pack, 218 F.3d at 452.
. 28 U.S.C. § 2255(e).
. Id.; see also Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2265, 171 L.Ed.2d 41 (2008).
. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).
. Reyes-Requena, 243 F.3d at 904; see also id. at 903 (noting that while all circuits have not used identical terms in delineating the requirements of the savings clause, most have adopted both actual innocence and retroactivity in their formulations).
. Id. at 904.
. Reyes-Requena, 243 F.3d at 901 n. 19; see also id. at 902 ("Our jurisprudence regarding § 2255’s savings clause makes clear that § 2241 is not a mere substitute for § 2255 and that the inadequacy or inefficacy requirement is stringent.”)
.See e.g., Pack, 218 F.3d at 453 ("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 [§ 2255’s] procedural requirements a nullity and defy Congress's clear attempt to limit successive habe-as petitions.”); Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (per curiam); Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999); United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000); Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988); McGhee,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.