                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 03-1645
                                ________________

Mustafa Abdullah,                         *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      Western District of Missouri.
Bill Hedrick, Warden, United              *
States Medical Center for Federal         *
Prisoners,                                *
                                          *
             Appellee.                    *

                                ________________

                                Submitted: January 15, 2004
                                    Filed: December 17, 2004
                                ________________

Before MELLOY, BRIGHT, and HANSEN, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.

      Mustafa Abdullah appeals the district court’s1 dismissal of his petition for a
writ of habeas corpus under 28 U.S.C. § 2241 (2000). The issue in this case is
whether, in the circumstances presented, 28 U.S.C. § 2255 (2000) is inadequate or
ineffective to test the legality of Abdullah’s conviction, such that a district court

      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
would have jurisdiction to consider a § 2241 petition for habeas corpus relief. We
agree that the district court had no jurisdiction to consider Abdullah’s claim, and we
affirm the judgment of the district court.

                                        I.
       Abdullah’s claim, stemming from a firearm conviction under 18 U.S.C. § 924
(c)(1) (1988), has been before this court before. The factual background of his claim
is more fully developed in the previous opinions. In brief, Abdullah pleaded guilty
to charges of drug distribution under 21 U.S.C. §§ 841 and 846 (1988), and “use” of
a firearm under § 924(c)(1). We affirmed on appeal. See United States v. Abdullah,
947 F.2d 306 (8th Cir. 1991), cert. denied, 504 U.S. 921 (1992).

      In 1993 Abdullah filed a § 2255 motion raising ineffective-assistance-of-
counsel claims. In this motion, Abdullah did not argue that his § 924(c)(1) conviction
was invalid because he had not properly understood the statute’s definition of the
word “use.” In December 1995 the Supreme Court decided Bailey v. United States,
516 U.S. 137 (1995). Bailey held that the “use” element in § 924(c)(1) “requires
evidence sufficient to show an active employment of the firearm by the defendant.”
Bailey, 516 U.S. at 143. Thereafter, in March 1996, while his § 2255 motion was
pending in the district court, Abdullah filed a pro se motion in the district court in
which he argued, for the first time, that his § 924(c)(1) conviction was invalid under
Bailey. Because Abdullah was represented by counsel, the district court refused to
accept the motion. Abdullah v. United States, 240 F.3d 683, 685-86 (8th Cir.), cert.
denied, 534 U.S. 923 (2001). “The district court denied the motion without
consideration of its contents and instructed the clerk to return the motion to
Abdullah’s attorney of record. Abdullah’s private counsel never raised the Bailey
argument on his behalf.” Id. at 686. The district court denied Abdullah’s § 2255
motion in September 1996. Id. at 684.




                                          2
       Appealing the denial of his § 2255 motion, Abdullah again argued that his
§ 924(c)(1) conviction was invalid. Id. at 684-85. Abdullah argued, and it was
conceded by the government, that the firearm conviction was invalid under Bailey
and Bousley v. United States, 523 U.S. 614, 616 (1998). Abdullah, 240 F.3d at 685.
Affirming the district court, we held that Abdullah had “procedurally defaulted the
Bailey/Bousley argument” by not properly presenting the argument to the district
court in his initial § 2255 motion. Abdullah, 240 F.3d at 686. We also held that his
claim was more properly considered an attempt to file a second or successive § 2255
motion and that Abdullah was time-barred from presenting the claim in a second
motion because of the one-year time limit in § 2255. Id.

       Abdullah now seeks to present his Bailey claim through a § 2241 petition. The
district court dismissed the petition as improperly filed under § 2241. We review de
novo the district court’s dismissal of Abdullah’s § 2241 petition. United States v.
Lurie, 207 F.3d 1075, 1076 (8th Cir. 2000).

                                        II.
       A petitioner who seeks to challenge his sentence or conviction generally must
do so in the sentencing court through § 2255 and cannot use § 2241 to challenge the
conviction without first showing that § 2255 would be inadequate or ineffective. Hill
v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003); Lurie, 207 F.3d at 1077. The
requirement that a petitioner must first demonstrate that § 2255 is “inadequate or
ineffective” comes from § 2255's savings clause:

      An application for a writ of habeas corpus in [sic] 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.

                                           3
       In such cases, the petitioner has the burden of showing that the remedy under
§ 2255 would be inadequate or ineffective. Hill, 349 F.3d at 1091. It is well
established that “in order to establish a remedy is ‘inadequate or ineffective’ under
§ 2255, there must be more than a procedural barrier to bringing a § 2255 petition.”
Id. Furthermore, § 2255 is not inadequate or ineffective merely because the claim
was previously raised in a § 2255 motion and denied, or because a remedy under that
section is time-barred. Lurie, 207 F.3d at 1077. Abdullah argues that he satisfies the
“inadequate or ineffective” prong of the savings clause, and should therefore be
permitted to bring a claim under § 2241, because he has demonstrated that he is
“actually innocent” of the crime for which he was convicted.2 He argues that a
showing of actual innocence, coupled with the procedural inability to raise his claim
under § 2255, amounts to more than a mere procedural barrier to raising his claim.
We have previously declined to decide “whether a claim of ‘actual innocence’ allows
a petitioner to bypass the gatekeeping requirements of the amended § 2255 and
proceed with a § 2241 habeas corpus petition via § 2255's savings clause.” Lurie,
207 F.3d at 1077 n.4. We also did not consider the merits of Abdullah’s actual
innocence claim in his prior appeal from the denial of his § 2255 motion. Abdullah,
240 F.3d at 686.

                                          III.
       In support of his attempt to use § 2241 as a vehicle to present his claim,
Abdullah cites several cases from other circuits in which the courts have, under
limited circumstances, permitted petitioners to use § 2241 to bring a Bailey claim.
The Second, Third, Fourth, Fifth, and Seventh Circuits have considered such claims
in the context of Bailey challenges. Other circuits have considered the issue in other
contexts. In each case, the courts have similarly limited the use of § 2241 petitions
to cases in which the petitioner asserts a claim of actual innocence and never had an

      2
       To make an actual innocence showing, Abdullah would have to prove “not
only actual innocence of the gun charge but also of the more serious charges the
government dismissed in exchange for the guilty plea.” See Abdullah, 240 F.3d at
686 n.4 (citing Dejan v. United States, 208 F.3d 682, 686 (8th Cir. 2000)).

                                          4
unobstructed procedural opportunity to raise the claim. After carefully considering
those cases and the circumstances of Abdullah’s petition, we hold that § 2255 was not
inadequate or ineffective to raise Abdullah’s claim because, as our first opinion
pointed out, regardless of his ability to demonstrate actual innocence, Adbullah did
have an unobstructed procedural opportunity to raise his claim.


       The Third Circuit first considered a Bailey claim in In re Dorsainvil, 119 F.3d
245 (3d Cir. 1997). In Dorsainvil, the petitioner, like Abdullah, was convicted of use
of a weapon under § 924(c)(1). Dorsainvil sought collateral relief under § 2255. In
1994, the district court denied his first § 2255 motion. Id. at 246. In December 1995
Bailey was decided, and in April 1996 the Antiterrorism and Effective Death Penalty
Act (AEDPA) was enacted. AEDPA amended § 2255, imposing strict restrictions on
when second or successive § 2255 motions could be filed. The Third Circuit denied
Dorsainvil's request to file a second § 2255 motion. Id. at 247-48. The court found
that he did not qualify under the amended § 2255 for permission to file a second or
successive petition because he had presented no change in factual circumstances, id.
at 247, and Bailey was not a "new rule of constitutional law," id. at 248. However,
the court concluded that “under narrow circumstances, a petitioner in Dorsainvil's
uncommon situation may resort to the writ of habeas corpus codified under 28 U.S.C.
§ 2241.” Id. Noting that Dorsainvil had demonstrated actual innocence because he
had been convicted for conduct that the law did not make criminal, the court also
reasoned that “Dorsainvil does not have and, because of the circumstance that he was
convicted for a violation of § 924(c)(1) before the Bailey decision, never had an
opportunity to challenge his conviction as inconsistent with the Supreme Court's
interpretation of § 924(c)(1).” Id. at 251. The court stated that allowing § 2241 to
be used by someone in Dorsainvil’s position “[was] hardly likely to undermine the
gatekeeping provisions of § 2255.” Id.3


      3
        See also United States v. Brooks, 230 F.3d 643, 649 (3d Cir. 2000), reh'd on
other grounds, 245 F.3d 291 (3d Cir. 2001) (holding that § 2255 was not inadequate

                                          5
       Soon after Dorsainvil, the Second Circuit decided Triestman v. United States,
124 F.3d 361 (2d Cir. 1997). In 1992, Triestman pleaded guilty to use of a firearm
under § 924(c)(1). Id. at 363. His § 924(c)(1) conviction was affirmed on direct
appeal. Id. at 364. In 1994, Triestman filed his first § 2255 motion attacking the
validity of his guilty plea because “he had entered into it under the mistaken belief
that he could be convicted on the basis of the mere possession of a firearm.” Id. The
district court denied the motion, and the Second Circuit summarily affirmed in 1995,
before Bailey was decided and before § 2255 was amended. Id. In 1996 the Second
Circuit denied authorization to file a successive § 2255 motion. Id. at 365-66.
Although Triestman’s claim would have been cognizable under the old § 2255, id. at
368, the court held that Triestman did not satisfy the requirements of the amended
statute for second or successive motions, id. at 369. Thus, Triestman was not
permitted to file a successive § 2255 motion, “despite the fact that, as a practical
matter, [he] would not have been able to raise this fundamental claim of actual
innocence any sooner.” Id.


        However, the Second Circuit concluded that § 2255 was inadequate or
ineffective to test the legality of the conviction and that Triestman could bring his
claim under § 2241. Id. at 373, 378-79. The court concluded “that serious due
process questions would arise if Congress were to close off all avenues of redress in
such cases, especially when the prisoner could not have raised his claim of
innocence–which appears on the record–in an effective fashion at an earlier time.”
Id. at 379.4


or ineffective where the petitioner previously had a meaningful opportunity to present
his claim to the district court).
      4
       Subsequent cases in the Second Circuit have underscored the limited
circumstances under which the court is willing to deem § 2255 inadequate or
ineffective. See Love v. Menifee, 333 F.3d 69, 73 (2d Cir. 2003), cert. denied, 124
S. Ct. 1478 (2004); Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir. 2003), cert.
denied, 124 S. Ct. 1486 (2004).

                                          6
        Next, the Seventh Circuit considered a Bailey claim in In re Davenport, 147
F.3d 605 (7th Cir. 1998). In Davenport, the court considered two consolidated
appeals from district court orders denying § 2241 habeas petitions. Id. at 607. In the
first case, petitioner Davenport had been convicted of being a felon in possession of
a firearm and his sentence was enhanced under the armed career criminal statute. His
first § 2255 petition was denied. Id. In 1997 the district court construed his § 2241
petition as a successive § 2255 motion and dismissed it because Davenport had not
received authorization from the court of appeals. In the companion case, petitioner
Nichols had been convicted under § 924(c)(1). Id. His conviction was affirmed on
appeal and his first § 2255 motion was denied before Bailey was decided. After
Bailey, Nichols brought a second collateral attack, but the petition was dismissed.
Id.


        The Seventh Circuit noted that in both cases, “[the petitioners’] arguments go
to the fundamental legality of their sentences.” Id. at 609. Acknowledging that “[t]he
essential function [of habeas corpus] is to give a prisoner a reasonable opportunity
to obtain a reliable judicial determination of the fundamental legality of his
conviction and sentence,” the court found that Davenport had already been given a
reasonable opportunity to test the legality of his conviction. Id. The court noted that
Davenport could have raised his claim on direct appeal or in his first § 2255 motion.
Id. “Nothing in § 2255 made the remedy provided by that section inadequate to
enable Davenport to test the legality of his imprisonment. He had an unobstructed
procedural shot at getting his sentence vacated.” Id. The court also rejected
Davenport’s argument that an arguably innocent person must be allowed to seek relief
under § 2241 if, for any reason, he is unable to use § 2255 to attack the conviction.

      Society . . . is unwilling to expend indefinitely large judicial resources
      on repeated testing of the accuracy of a determination of guilt. The
      amended section 2255 gives a convicted defendant only one further bite
      at the apple after his direct appeal unless he can demonstrate a
      compelling reason, as defined in the section (newly discovered evidence
      of innocence or a new and retroactive rule of constitutional law), for

                                          7
      being allowed a third bite (the first being the direct appeal, the second
      the first postconviction proceeding). We do not think it plausible that the
      Constitution requires more, in which event there would be an argument
      for construing the escape hatch more broadly in order to preserve the
      constitutionality of section 2255. . . .

Id. at 610.

        However, the Seventh Circuit found petitioner Nichols’ argument more
compelling. It observed that “Nichols had no reasonable opportunity, either when he
was convicted and appealed or later when he filed a motion for postconviction relief
under section 2255, to challenge the legality of his conviction.” Id. The court noted
that at the time of Nichols’ first § 2255 motion, Bailey had not been decided yet and
circuit law had been against him. Id. After AEDPA passed, Nichols was unable to
use § 2255 to file a successive motion because he was unable to satisfy the
requirements of the amended § 2255 for successive motions. Id. The Seventh
Circuit held that Nichols would be allowed to present his claim through a § 2241
petition in the district court, id. at 612, ruling that “[a] federal prisoner should be
permitted to seek habeas corpus only if he had no reasonable opportunity to obtain
earlier judicial correction of a fundamental defect in his conviction or sentence
because the law changed after his first § 2255 motion,”5 id. at 611.


      In similar cases, the Fourth and Fifth Circuits have also provided guidance as
to when § 2255 might be inadequate or ineffective to test the legality of a conviction.
See In re Jones, 226 F.3d 328 (4th Cir. 2000); Reyes-Requena v. United States, 243
F.3d 893 (5th Cir. 2001). These cases also involved challenges to Bailey convictions.

      5
        The Seventh Circuit added three qualifications to the rule, but those
qualifications are not relevant here. See id. at 611-12. See also Taylor v. Gilkey, 314
F.3d 832, 835 (7th Cir. 2002) (holding that “§ 2255 is ‘inadequate or ineffective’ only
when a structural problem in § 2255 forecloses even one round of effective collateral
review – and then only when as in Davenport the claim being foreclosed is one of
actual innocence.”)

                                          8
In both cases, the petitioners filed their first § 2255 motions before Bailey was
decided and before the amendments to § 2255. Jones, 226 F.3d at 330; Reyes, 243
F.3d at 895. Each was denied permission to raise the claim in a successive § 2255
motion because he could not meet the strict requirements of § 2255 for successive
motions. Jones, 226 F.3d at 330; Reyes, 243 F.3d at 895. Citing the Seventh and
Second Circuits, the courts held that in the limited circumstances presented by the
cases before them, the petitioners could use § 2241 to present their claims. Jones,
226 F.3d at 334; Reyes, 243 F.3d at 906. Both courts emphasized that the
circumstances were special because, in each case, not only did the petitioner assert
a viable claim of actual innocence, but also the petitioner had not had an earlier
procedural opportunity to raise the claim. Jones, 226 F.3d at 332; Reyes, 243 F.3d
at 904 (specifying that in order to invoke the § 2255 savings clause, prior law must
have prevented petitioner from successfully raising the claim at an earlier procedural
phase).


       Other courts have addressed the issue in cases involving challenges to
convictions under other statutes. In Wofford v. Scott, 177 F.3d 1236 (11th Cir.
1999), the Eleventh Circuit decided such a case. Wofford had been convicted of drug
and firearm charges and his first § 2255 motion was denied. Id. at 1237. The
Eleventh Circuit denied permission to file a second motion because Wofford’s claims
did not satisfy the stringent requirements of the amended § 2255. Id. at 1238.
Wofford later attempted to use a § 2241 petition to raise the same issues and
arguments as in the second § 2255 motion. The Eleventh Circuit held that § 2255
was not inadequate or ineffective to challenge his conviction. Id. at 1245. The court
emphasized that “Wofford had a procedural opportunity to raise each of his claims
and have it decided either at trial or on appeal.” Id. “[The savings clause] does not
exist to free a prisoner of the effects of his failure to raise an available claim earlier.”
Id. The Eleventh Circuit also agreed with the Seventh Circuit that, in most cases,
with Bailey as a rare exception, a petitioner will have had “an unobstructed
procedural shot” at challenging his conviction. Id. at 1244 (citation and internal
marks omitted). See also Ivy v. Pontesso, 328 F.3d 1057, 1061 (9th Cir.), cert.

                                             9
denied, 124 S. Ct. 807 (2003) (holding that § 2255 had not been inadequate or
ineffective to test the legality of the petitioner’s conviction where the petitioner
“[had] not been denied an unobstructed procedural opportunity to present [his
claim]”); United States v. Barrett, 178 F.3d 34, 53 (1st Cir. 1999), cert. denied, 528
U.S. 1176 (2000) (“[W]here a prisoner had an opportunity to present his claim
properly in his first § 2255 petition, but failed to do so, any ‘ineffectiveness’ of his
current § 2255 petition is due to him and not to § 2255.”)

                                          IV.
        Comparing the facts of Abdullah’s case with those of the cases detailed above,
we conclude that it is clear that Abdullah has not shown that § 2255 was inadequate
or ineffective to test the legality of his conviction. In the cases in which the
petitioners were permitted to use § 2241, the courts found that the petitioners had no
earlier procedural opportunity to present their claims. Our sister circuits found that
lack of an earlier opportunity to be an important factor in finding a potential due
process violation. We agree that the Due Process Clause of our Constitution does not
require that a petitioner have more than one unobstructed procedural opportunity to
challenge his conviction. “That does not mean he took the shot, or even that he or his
attorney recognized the shot was there for the taking. All the Constitution requires,
if it requires that much, is that the procedural opportunity have existed.” Wofford,
177 F.3d at 1244.

      Abdullah, as we discussed in the previous opinion, see Abdullah, 240 F.3d at
686, did have an unobstructed procedural opportunity to present his claim–either by
amending his first § 2255 motion or by presenting a timely second § 2255 motion and
receiving authorization to file it. Abdullah’s failure to seize that opportunity does not
render § 2255 inadequate or ineffective to test the legality of his conviction. We have
previously held that § 2255 is not inadequate or ineffective where a petitioner had any
opportunity to present his claim beforehand. See Hill, 349 F.3d at 1092 (holding that
§ 2255 is not inadequate or ineffective where the petitioner had “at least two

                                           10
opportunities to raise [his] argument before the sentencing court”). At bottom, this
case is really a claim that Abdullah received ineffective assistance of counsel from
his privately retained § 2255 postconviction relief lawyer when that lawyer failed to
amend the § 2255 motion to include the Bailey claim. There is no Sixth Amendment
right to constitutionally effective counsel in § 2255 proceedings. See Clay v.
Bowersox, 367 F.3d 993, 1005 (8th Cir. 2004) ("There is no federal constitutional
right to the effective assistance of post-conviction counsel."); United States v.
Craycraft, 167 F.3d 451, 455 (8th Cir. 1999) ("There is no general right to counsel in
post-conviction habeas proceedings for criminal defendants."); Pollard v. Delo, 28
F.3d 887, 888 (8th Cir.) ("Where there is no constitutional right to counsel there can
be no right to effective assistance of counsel."), cert. denied, 513 U.S. 1003 (1994).
Because Abdullah did not show that § 2255 was inadequate or ineffective, the district
court correctly concluded that it had no jurisdiction to consider his claim in a § 2241
petition.


      For the reasons stated, we affirm the judgment of the district court.


BRIGHT, Circuit Judge, dissenting.


      I dissent because the record demonstrates Abdullah did not have an adequate
opportunity to present his arguments for a remedy under § 2255.


      The background that underlies my views is set forth in Judge Heaney’s dissent
in Abdullah v. United States, 240 F.3d 683, 687-88 (8th Cir.), cert. denied, 534 U.S.
923 (2001), and they are as follows: (1) Abdullah’s conviction is invalid after Bailey
and Bousley; (2) Abdullah timely filed a pro se motion raising the Bailey issue; (3)
the district court disregarded Abdullah’s motion; (4) the district court returned
Abdullah’s motion to his attorney (without notifying Abdullah); and (5) Abdullah’s

                                          11
attorney failed to assert the Bailey issue in the pending § 2255 petition because of
apparent illness. I repeat those essential matters in more detail.


       Abdullah received no effective remedy under § 2255, because the district court
barred him of the opportunity to present his argument for a remedy. Abdullah filed
a pro se motion, which the district court denied without considering the contents. The
district court sent Abdullah’s pro se motion to Abdullah’s attorney, without notifying
Abdullah. Because the district court did not return the motion to Abdullah, Abdullah
could reasonably believe that the district court was considering his motion.
Abdullah’s lawyer may not have acted on the motion because of illness, but we
cannot know the lawyer’s reason for his inaction because he has since died.


        In addition, the clerk of the district court provided Abdullah with a confusing
explanation about the pro se motion, which may have led Abdullah, a person with
little knowledge regarding the intricacies of the court system, to believe the substance
of his motion would be acted upon by the district court. This probable belief is
shown by Abdullah’s second pro se motion that he filed with the district court on
June 18, 1997, in which Abdullah questioned why the Bailey issue had not been
addressed by the district court. The combined effect of these circumstances prevented
Abdullah from seeking an effective remedy under § 2255 for his unlawful conviction
for use of a firearm pursuant to Bailey.


       Under the majority opinion Abdullah must continue serving time for this
invalid conviction for want of a remedy in the courts of the United States. I disagree.


      In limited circumstances § 2241 may provide a petitioner an avenue of relief
where § 2255 is inadequate or ineffective to test the legality of a conviction. As the
majority notes, the Second, Third, Fourth, Fifth, and Seventh Circuits have all

                                          12
indicated that in limited circumstances § 2241 may be used to raise a Bailey claim
where a petitioner had not had an opportunity to challenge a firearm conviction that
should be set aside under Bailey. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
1997); Triestman v. United States, 124 F.3d 361, 377-80 (2d Cir. 1997); In re
Davenport, 147 F.3d 605, 610 (7th Cir. 1998); In re Jones, 226 F.3d 328, 333-34 (4th
Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893, 904-06 (5th Cir. 2001).
In each of the cases cited, the prisoners filed a § 2255 petition for relief before the
Bailey opinion had issued and when it would have been futile to challenge the “use”
prong of the 924(c) firearm statute. These circuits stated that the issue could not be
raised by a second petition for § 2255 relief based on Bailey, but that the prisoner
could file for relief under the habeas corpus statute § 2241, because relief under §
2255 was not available. Here, while Abdullah sought § 2255 relief after Bailey, the
circumstances were such that the actions of the district court and the district court’s
clerk effectively denied Abdullah the opportunity to seek relief under § 2255. The
rationale for allowing § 2241 relief in the cases (In re Dorsainvil, 119 F.3d at 251;
Triestman, 124 F.3d at 377-80; In re Davenport, 147 F.3d at 610; In re Jones, 226
F.3d at 333-34; Reyes-Requena, 243 F.3d at 904-06) should apply to Abdullah’s
situation. Abdullah did all that can be reasonably expected of a defendant, and the
district court’s actions effectively foreclosed Abdullah, on purely procedural grounds,
from the opportunity to present his claim. In this unusual case, petitioner should be
allowed to seek relief in his § 2241 (habeas) petition. It is a complete miscarriage of
justice for Abdullah to continue serving time in prison for a conviction that is invalid
after Bailey.


      Accordingly, I would reverse the dismissal of the petition for habeas corpus
and remand to the district court for a decision on the merits of petitioner’s claims.
                       ______________________________




                                          13
