                          REVISED - December 18, 2000

                         UNITED STATES COURT OF APPEALS
                              For the Fifth Circuit



                                   No. 99-41461


                                 GARLAND JEFFERS,

                                                         Petitioner-Appellant,

                                      VERSUS

              ERNEST CHANDLER, Warden, U.S. Penitentiary,

                                                            Respondent-Appellee.


            Appeal from the United States District Court
                  for the Eastern District of Texas

                                 November 27, 2000

Before DUHÉ and PARKER, Circuit Judges, and LINDSAY1, District
Judge.

PER CURIAM:

       This case requires us to address the following issue of first

impression in this Circuit: May a federal prisoner utilize the

“savings clause” of 28 U.S.C. § 2255 for a successive motion if his

claim is based on a Supreme Court decision handed down after he has

been   convicted    and     sentenced   and    after   he    has   exhausted   his

opportunities      for    post    conviction   relief?        Persuaded   by   the

decisions in similar matters by several circuits, we conclude that,


   1
   District Judge of the Northern District of Texas, sitting by
designation.
under the facts of this case, he can.        Accordingly, we reverse the

district court and remand for consideration of the merits of the

claim.

                       FACTS AND PROCEDURAL HISTORY

     Garland Jeffers was convicted of engaging in a continuing

criminal enterprise (CCE) in violation of 21 U.S.C. § 848.          He was

sentenced to life imprisonment to be served consecutively to a 15-

year sentence for a prior conviction for conspiring to distribute

heroin and cocaine.      See United States v. Jeffers, 532 F.2d 1101,

1105 (7th Cir. 1976), aff’d in part and vacated in part, 432 U.S.

137 (1977).     The Supreme Court affirmed Jeffers’s conviction but

vacated his cumulative fines.        Jeffers v. United States, 432 U.S.

137, 157-58 (1977).     Jeffers then filed several unsuccessful § 2255

motions in the Seventh Circuit.

     Jeffers also filed an unsuccessful § 2241 petition challenging

his CCE conviction in the Middle District of Pennsylvania.               The

Third Circuit affirmed.        Jeffers then filed a § 2241 petition

attacking his CCE conviction in the Eastern District of Texas where

he is incarcerated.      The magistrate judge recommended that it be

construed as a § 2255 motion and denied as time-barred and as a

successive    motion   filed   without    this   court’s   permission.   The

district     court   adopted   the    magistrate    judge’s    Report    and

Recommendation over Jeffers’s objections and dismissed the case.

This court denied Jeffers a certificate of appealability.

     Jeffers then filed a petition for a writ of habeas corpus,

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invoking § 2241, in the Eastern District of Texas. Relying on

Richardson v. United States, 526 U.S. 813 (1999), Jeffers argued

that his CCE conviction resulted from constitutionally deficient

jury instructions.     In Richardson, the Supreme Court concluded that

a jury in a CCE case must unanimously convict the defendant on each

of the specific violations that make up the alleged continuing

series of violations.         Richardson, 526 U.S. at 824.               Jeffers

contends that the jury instructions given at his trial did not

include instructions requiring the jury to do this.                  He conceded

that the Richardson decision did not announce a new rule of

constitutional law but merely applied settled principles to new

facts but contends that Richardson should be applied retroactively

under the second exception of Teague v. Lane, 489 U.S. 288, 312-316

(1989).

      Jeffers contends that he may raise his Richardson claim in a

§ 2241 petition because the § 2255 remedy is inadequate and

ineffective because he was unable to raise his claim in his prior

§ 2255 motions because the Richardson decision was not in existence

at the time, and, thus, he had no reasonable opportunity to obtain

earlier judicial correction of the alleged defect in his conviction.

He   also   contends   that   because       of   the   intervening    Richardson

decision, he can now show that he is actually innocent of the CCE

charge because he was never found guilty beyond a reasonable doubt

on the continuing series of drug violations element of the charge.

      The district court denied Jeffers’s § 2241 petition, finding

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that Jeffers failed to show that § 2255 relief was inadequate or

ineffective.     The district court, noting that some other circuits

have held that § 2241 relief may be available to a federal prisoner

seeking to attack his conviction in certain limited instances, found

that this was not one of those instances.            The court found that to

allow Jeffers to bring his claim in a § 2241 petition would render

the restrictions regarding successive § 2255 motions meaningless and

allow Jeffers to circumvent the intent of the Antiterrorism and

Effective Death Penalty Act.         Id. at 87.

       Jeffers filed a timely notice of appeal and a request for a

COA.    The district court denied Jeffers’s request for a COA.

                                   DISCUSSION

Standard of Review

       Because he is proceeding under § 2241, Jeffers need not obtain

a COA.    See Ojo v. INS, 106 F.3d 680, 681-82 (5th Cir. 1997); see

also 28 U.S.C. § 2253.        In an appeal from the denial of habeas

relief, this court reviews a district court’s findings of fact for

clear error and issues of law de novo.            See Moody v. Johnson, 139

F.3d 477, 480 (5th Cir. 1998).

       Section   2255   provides    the    primary   means   of   collaterally

attacking a federal conviction and sentence. Tolliver v. Dobre, 211

F.3d 876, 877 (5th Cir. 2000).              Relief under this section is

warranted for errors that occurred at trial or sentencing.              Id.

       Section 2241 is correctly used to attack the manner in which

a sentence is executed.       United States v. Cleto, 956 F.2d 83, 84

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(5th Cir. 1992). A petition filed under § 2241 which attacks errors

that occurred at trial or sentencing is properly construed as a §

2255 motion.    See Tolliver, 211 F.3d at 877-78.

       Nevertheless, a § 2241 petition which attacks custody resulting

from a federally imposed sentence may be entertained when the

petitioner establishes that the remedy provided for under § 2255 is

inadequate or ineffective to test the legality of his detention.2

Id. at 878.    A § 2241 petition is not, however, a substitute for a

motion under § 2255, and the burden of coming forward with evidence

to show the inadequacy or ineffectiveness of a motion under § 2255

rests squarely on the petitioner.      McGhee v. Hanberry, 604 F.2d 9,

10 (5th Cir. 1979).     A prior unsuccessful § 2255 motion, or the

inability to meet the AEDPA’s second or successive requirement, does

not make § 2255 inadequate or ineffective.      Tolliver, 211 F.3d at

878.

       Jeffers argues that his case is different from those in which

a § 2255 litigant has been unsuccessful on the merits of his claims


   2
     Known as the “savings clause,” the fifth paragraph of
§ 2255 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.

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because he had no opportunity to obtain a judicial determination of

the legality of his conviction inasmuch as the Richardson decision

had not been issued when he filed his prior § 2255 motions.      In

support of his argument Jeffers cites several cases from other

circuits which have held that the § 2255 remedy is inadequate if a

prisoner is afforded no reasonable opportunity to obtain a reliable

judicial determination of the fundamental legality of his conviction

or sentence, either when he is convicted, on appeal, or later when

he files a motion for postconviction relief under § 2255.    Id. at

2-7 (citing Wofford v. Scott, 177 F.3d 1236, 1244 & n.3 (11th Cir.

1999); In re: Davenport, 147 F.3d 605, 610-12 (7th Cir. 1998);

Triestman v. United States, 124 F.3d 361, 363 (2d Cir. 1997); In re:

Dorsainvil, 119 F.3d 245, 250-51 (3d Cir. 1997)).      The cases to

which Jeffers cites have held that such a circumstance might arise

if, after the petitioner has been convicted and has exhausted his

opportunities for postconviction relief, a court decision alters the

prevailing interpretation of a statute and makes clear that the

petitioner’s conduct did not violate the statute.   See Wofford, 177

F.3d at 1244; Davenport, 147 F.3d at 611; Triestman, 124 F.3d at

363, 380; Dorsainvil, 119 F.3d at 250-51.

     Most of the cases which Jeffers cites involve prisoners who

asserted that they were actually innocent of their convictions based

on the Supreme Court’s opinion in Bailey v. United States, 516 U.S.

137 (1995).   See Davenport, 147 F.3d at 607-08; Triestman, 124 F.3d

at 365-66; Dorsainvil, 119 F.3d at 246-48.     In those cases, the

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prisoners were unable to obtain review of their claims in a § 2255

motion because Bailey had been decided after they had filed their

first § 2255 motions, and they were unable to meet the requirements

for filing a successive § 2255 motion.    See Davenport, 177 F.3d at

607-08; Triestman, 124 F.3d at 365-66; Dorsainvil, 119 F.3d at 246-

48.

      In Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999), this

court recognized that other circuits have allowed prisoners to use

the “savings clause” of § 2255 to raise a Bailey claim in a § 2241

petition.     However, this court has not directly addressed whether

the § 2255 remedy is inadequate if a prisoner is afforded no

reasonable opportunity to obtain a reliable judicial determination

of the fundamental legality of his conviction or sentence because

his claim is based on a court decision which was issued after the

prisoner had been convicted and had exhausted his opportunities for

postconviction relief.

      Courts have narrowly defined the circumstances under which a

petitioner is entitled to seek § 2241 relief based on the savings

clause.     Some courts have held that relief under § 2241 should be

limited to cases in which the petitioner’s claim is based on a

retroactively applicable Supreme Court decision which overrules

circuit law that was existing at the time the claim should have

otherwise been raised. See Wofford, 177 F.3d at 1244-45; Davenport,

147 F.3d at 611.      Others have indicated that relief should be

available under § 2241 only if failure to hear a prisoner’s claim

                                  7
would result in a serious constitutional question, or if the

petitioner     can   make   an   effective    claim    of    factual   or   legal

innocence.      Triestman, 124 F.3d at 377-80.               Other courts have

suggested that § 2241 may be invoked only when a fundamental defect

exists    in   the   criminal    conviction   and     that   defect    cannot   be

corrected under § 2255.         Cooper v. United States, 199 F.3d 898, 901

(7th Cir. 1999).

     Jeffers makes a meritorious argument that his remedy under

§ 2255 is inadequate.       He contends, based on Richardson, that the

jury instructions were fundamentally defective and that he is

actually innocent of the CCE conviction. Jeffers was not afforded

a reasonable opportunity to obtain a reliable judicial determination

of the fundamental legality of his conviction on the issue he now

raises, either when he was convicted, on appeal, or later when he

filed his § 2255 motions since the Richardson decision had not been

issued.




     Accordingly, we reverse and remand for consideration of the

merits of Appellant's jury charge claim.

     REVERSED and REMANDED.




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