               UNITED STATES COURT OF APPEALS
                         FOR THE EIGHTH CIRCUIT
                                  ____________


                                  No. 98-2568
                                  ____________


United States of America,                 *
                                          *
      Respondent/Appellee,                *
                                          *    Appeal from the United States
      v.                                  *    District Court for the Eastern
                                          *    District of Missouri.
Ronald U. Lurie,                          *
                                          *
      Petitioner/Appellant.               *
                                     ______________

                               Submitted: December 17, 1999

                                    Filed: March 29, 2000
                                     ______________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and WEBB,1 District
      Judge.

WEBB, District Judge.




      1
         The Honorable Rodney S. Webb, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
       Appellant, Ronald U. Lurie, seeks relief from the summary dismissal of his
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. We review de novo
a district court’s dismissal of a § 2241 habeas corpus petition. See Charles v.
Chandler, 180 F.3d 753, 755 (6th Cir. 1999).


       Pursuant to a plea agreement, Lurie pled guilty to making a false declaration in
a proceeding before the United States Bankruptcy Court in violation of 18 U.S.C. §
1623. He was sentenced to a term of eighteen months imprisonment to be followed by
two years of supervised release; a fine was also imposed. Lurie did not appeal his
criminal conviction or sentence. Shortly before his term of supervised release was to
expire, Lurie filed a motion to vacate his sentence per 28 U.S.C. § 2255, or, in the
alternative, a petition for writ of habeas corpus per 28 U.S.C. § 2241, contending that
his guilty plea was not knowingly and voluntarily entered and that he was innocent of
the charge. The district court2 determined that petitioner’s § 2255 motion was untimely
since all of the grounds to support withdrawing his guilty plea could have been asserted
on direct appeal or in a timely § 2255 motion. The court dismissed the claim for relief
under § 2241 because Lurie had not shown that relief under § 2255 was “inadequate
or ineffective” to test the legality of his conviction.


       This court denied a certificate of appealability on the dismissal of the § 2255
motion; we directed briefs, however, on the dismissal of the alternative request for a
writ of habeas corpus pursuant to § 2241.



       2
        The Honorable Donald J. Stohr, United States District Judge for the
Eastern District of Missouri.

                                             2
      A challenge to a federal conviction, like this one, is most appropriately brought
as a motion under 28 U.S.C. § 2255. See United States v. Hayman, 342 U.S. 205, 217
(1952). The district court correctly dismissed Lurie’s § 2255 motion as being beyond
the one-year statute of limitations and/or grace period of 28 U.S.C. § 2255 as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).3 A writ of
habeas corpus on behalf of a petitioner may issue under 28 U.S.C. § 2241 only if it
“appears that the remedy by motion is inadequate or ineffective to test the legality of
his detention.” 28 U.S.C. § 2255. Thus, the issue is whether § 2255 is inadequate or
ineffective to test the legality of Lurie’s conviction.4 We believe it is not.


      While courts have not thoroughly defined what is meant by “inadequate or
ineffective,” recent cases from our sister circuits make clear that more is required than
demonstrating that there is a procedural barrier to bringing a § 2255 motion. See, e.g.,



      3
         Section 2255 provides that “[a] 1-year period of limitation shall apply to a
motion under this section.” With respect to persons, like Lurie, whose convictions
became final prior to the April 24, 1996 effective date of the AEDPA, a one-year
grace period began to run after the AEDPA’s effective date. See Moore v. United
States, 173 F.3d 1131, 1133 (8th Cir. 1999).
      4
           Lurie asserts that he is entitled to file a § 2241 habeas corpus petition
pursuant to the § 2255 savings clause based on his mere claim of “actual
innocence.” Claims of “actual innocence” are extremely rare and are based on
“factual innocence not mere legal insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). Nothing in this case persuades us that Lurie presents more
than an unsupported allegation of “actual innocence.” Therefore, we decline to
address 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.

                                            3
In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (noting that it can’t be right and
would nullify the AEDPA limitations if a prisoner, prevented from obtaining relief
under § 2255, could simply turn to § 2241). Specifically, the § 2255 motion is not
inadequate or ineffective merely because § 2255 relief has already been denied, see
Charles, 180 F.3d at 757-58; In re Dorsainvil, 119 F.3d 245, 251 (3rd Cir. 1997), or
because petitioner has been denied permission to file a second or successive § 2255
motion, see United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999); Wofford v. Scott,
177 F.3d 1236, 1245 (11th Cir. 1999); Davenport, 147 F.3d at 608, or because a
second or successive § 2255 motion has been dismissed, see Moore v. Reno, 185 F.3d
1054, 1055 (9th Cir. 1999), or because petitioner has allowed the one year statute of
limitations and /or grace period to expire, see Charles, 180 F.3d at 758.
      As the district court correctly noted, the fact that Lurie may not now utilize §
2255 because his one-year grace period has run, does not automatically render § 2255
inadequate or ineffective. Neither has Lurie actually demonstrated that a § 2255
motion is inadequate or ineffective. All of the claims asserted here,5 including Lurie’s
claim of actual innocence, could have been maintained in a timely § 2255 motion or on
direct appeal. “It is the petitioner’s burden to establish that his remedy under § 2255
is inadequate or ineffective,” Charles, 180 F.3d at 756; see also DeSimone v. Lacy,
805 F.2d 321, 323 (8th Cir. 1986), yet Lurie offers no credible evidence to establish that
his claims could not have been brought within the grace period of § 2255. “The one-
year period provided him with reasonable opportunity to file for relief; and if that time


      5
          Lurie claims that he was mistakenly advised that his plea would resolve all
the bankruptcy litigation, that he was taking Prozac, and that his attorney was
ineffective for failing to advise him that his statements to the bankruptcy court were
suppressible.

                                            4
period has expired, it is the result of his own doing and not due to any inadequacy in
the statute.” Charles, 180 F.3d at 758.


      Accordingly, we affirm the district court’s summary dismissal of Lurie’s § 2241
petition for writ of habeas corpus.


      A true copy.


      Attest:


             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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