                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0415p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                           X
                                    Petitioner-Appellant, -
 DARRELL RITTENBERRY,
                                                            -
                                                            -
                                                            -
                                                                 No. 05-5606
              v.
                                                            ,
                                                             >
 JACK MORGAN,                                               -
                                   Respondent-Appellee. -
                                                           N
                             Appeal from the United States District Court
                          for the Middle District of Tennessee at Cookeville.
                         No. 04-00018—William J. Haynes, Jr., District Judge.
                                            Argued: June 26, 2006
                                  Decided and Filed: November 9, 2006
            Before: MARTIN and GILMAN, Circuit Judges; SARGUS, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellant. Jennifer L. Smith, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee. ON BRIEF: Michael C. Holley, Mariah A. Wooten, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Jennifer L. Smith, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        BOYCE F. MARTIN, JR., Circuit Judge. Petitioner-Appellant Darrell Rittenberry, who had
previously filed a federal habeas petition under 28 U.S.C. § 2254 and was denied relief, filed the
present habeas petition under 28 U.S.C. § 2241. Rittenberry claims that by filing under section
2241, he does not have to meet the requirement of 28 U.S.C. § 2244(b), which restricts the filing of
successive petitions “under section 2254.” The district court dismissed the petition, but granted a
Certificate of Appealability on the single legal question of whether section 2241 “remains an
independent remedy for a claim of actual innocence.”



        *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.


                                                         1
No. 05-5606           Rittenberry v. Morgan                                                   Page 2


                                                  I.
         In 1987, Rittenberry pled guilty in Tennessee state court to second degree murder and armed
robbery, and was sentenced to life imprisonment. He subsequently sought post-conviction relief in
state court, which was denied. In 1991, Rittenberry filed a federal habeas petition under 28 U.S.C.
§ 2254, challenging his guilty pleas and sentence due to ineffective assistance of counsel,
prosecutorial misconduct, the use of perjured testimony, and sentencing calculation errors. A
magistrate judge issued a report and recommendation rejecting Rittenberry’s arguments, which the
district court subsequently adopted, dismissing the petition. Rittenberry filed a second habeas
petition in 1997, which the district court dismissed without prejudice due to Rittenberry’s failure to
exhaust state remedies.
        After pursuing additional post-conviction relief in state court, Rittenberry filed the present
petition in March 2004, seeking habeas relief under 28 U.S.C. § 2241 — as opposed to section 2254
— so as to challenge his plea based on information he became privy to after the denial of his first
federal habeas petition. Specifically, Rittenberry gained access to the prosecutor’s file in 2002
through his request under the state Public Records Act. In the file, he discovered that his co-
defendant, Charlie Allen, had made a statement to a fellow prisoner in which he admitted to taking
the primary responsibility for tying up the victim of their robbery, which led to the victim’s death.
This information was significant because Allen had been designated as the primary witness against
Rittenberry, pursuant to Allen’s plea agreement, and the strength of Allen’s statement had convinced
Rittenberry to plead guilty.
         According to Rittenberry, he only received this information in 2002 in exchange for his
agreement to voluntarily dismiss his pending state habeas proceeding. This practice by the state of
refusing to turn over records to parties involved in litigation against Tennessee, including state and
federal habeas proceedings, is endorsed by Tennessee law. See Swift v. Campbell, 159 S.W.3d 565,
576 (Tenn. App. 2004). This rule, operating in conjunction with the one year statute of limitations
on filing a habeas action, leads to what Rittenberry describes as “Tennessee’s Catch-22,” whereby
a petitioner cannot obtain information needed to litigate a habeas proceeding until an initial habeas
petition is either time-barred or dismissed with prejudice.
        Rittenberry filed the present petition pro se after voluntarily dismissing his state habeas
proceeding and subsequently discovering the information from the prosecutor’s file through the state
Public Records Act. He was then appointed counsel, and filed an amended petition through counsel
on July 26, 2004. The amended petition raised three claims: that Rittenberry was denied effective
assistance of trial counsel; that his guilty plea was not knowing or voluntary; and that he was denied
due process by the prosecutor’s reliance on perjured testimony in procuring his guilty plea. After
the warden moved to dismiss the petition on the grounds that it was a second or successive petition
under 28 U.S.C. § 2244(b) (part of the 1996 Antiterrorism and Effective Death Penalty Act)
Rittenberry argued that because his action was filed under section 2241 rather than section 2254, it
was not subject to the second or successive petition restrictions of section 2244(b). The district
court rejected this argument, and ordered the petition transferred to this Court as a second or
successive petition under section 2244(b) on February 25, 2005. Rittenberry then filed a motion to
alter the judgment, seeking a certificate of appealability on the issue of whether the petition could
be presented independently under section 2241. The district court granted his motion in part by
issuing the certificate of appealability on this single legal question, which is now before us.
                                                 II.
        We review a district court’s decision regarding a writ of habeas corpus de novo. Wolfe v.
Brigano, 232 F.3d 499, 501 (6th Cir. 2000). Because this case presents only a question of law, there
are no factual findings to which a more deferential standard would apply.
No. 05-5606           Rittenberry v. Morgan                                                       Page 3


        Rittenberry’s appeal turns on the question of whether a habeas petitioner can avoid the
procedural hurdles of the Antiterrorism and Effective Death Penalty Act, the pertinent portions of
which are codified in 28 U.S.C. §§ 2244 and 2254, by filing his petition under 28 U.S.C. § 2241,
rather than section 2254. Section 2241 provides a general grant of habeas jurisdiction and would,
on its own, be more friendly to a habeas petitioner — particularly one who has previously filed a
federal habeas petition. By contrast, section 2254 limits the grounds for habeas relief to people in
custody pursuant to a state court judgment. Rittenberry freely admits that he is filing under section
2241, which he describes as a separate “gate” to habeas relief from section 2254, “because
[§ 2241’s] hurdle for successive petitions is more flexible than § 2254’s.” Most significantly,
because this is not Rittenberry’s first habeas petition, if he were filing under section 2254 he would
have to satisfy the requirement of section 2244(b)(2)(B) that he obtain initial authorization from this
Court to file his claim by making a showing of actual innocence (in addition to showing that the
facts underlying his claim could not have been discovered initially). Rittenberry contends that he
does not have to meet this prerequisite because he “filed under section 2241.”
       Rittenberry’s legal argument relies largely on the language of the three relevant statutory
provisions, and it is helpful at the outset to review the relevant portions of the statutory text. They
provide as follows:
§ 2241. Power to grant writ
       (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof,
       the district courts and any circuit judge within their respective jurisdictions. The
       order of a circuit judge shall be entered in the records of the district court of the
       district wherein the restraint complained of is had.
       ...
       (c) The writ of habeas corpus shall not extend to a prisoner unless--
       ....
       (3) He is in custody in violation of the Constitution or laws or treaties of the United
       States;
§ 2244. Finality of determination
       ....
       (b) (1) A claim presented in a second or successive habeas corpus application under
       section 2254 that was presented in a prior application shall be dismissed.
       (2) A claim presented in a second or successive habeas corpus application under
       section 2254 that was not presented in a prior application shall be dismissed unless--
       ...
       (B) (i) the factual predicate for the claim could not have been discovered previously
       through the exercise of due diligence; and
       (ii) the facts underlying the claim, if proven and viewed in light of the evidence as
       a whole, would be sufficient to establish by clear and convincing evidence that, but
       for constitutional error, no reasonable factfinder would have found the applicant
       guilty of the underlying offense.
       (3) (A) Before a second or successive application permitted by this section is filed
       in the district court, the applicant shall move in the appropriate court of appeals for
       an order authorizing the district court to consider the application.
       ....
       (d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas
       corpus by a person in custody pursuant to the judgment of a State court....
(emphasis added)
No. 05-5606               Rittenberry v. Morgan                                                                 Page 4




§ 2254. State custody; remedies in Federal courts
         (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
         entertain an application for a writ of habeas corpus in behalf of a person in custody
         pursuant to the judgment of a State court only on the ground that he is in custody
         in violation of the Constitution or laws or treaties of the United States.
(emphasis added)
Rittenberry contrasts the language of the habeas statutes to present the argument that a section 2241
habeas petition is a different and independent avenue to relief from a section 2254 petition. He
argues that because section 2244(b)(2) specifically references claims “presented in a second or
successive habeas corpus application under section 2254,” in requiring a petitioner to gain pre-
authorization from the court of appeals based on an initial showing of actual innocence, this
requirement cannot apply to claims that are instead brought under section 2241.
        There are some differences in language among the statutory provisions that support
Rittenberry’s argument. Most significantly, the limitation on successive petitions from section
2244(b) is the only limitation that uses the language “under section 2254.” In contrast, parts (c) and
(d) apply to any habeas   petition brought on behalf of a “person in custody pursuant to a judgment
of a State court.” 1 Similarly, in section 2254, three of the specific limitations apply to petitions
filed on “behalf of a person in custody pursuant to a judgment of a state court.” See § 2254 (b), (d),
and (e). Because Congress apparently chose to distinguish between petitions filed under section
2254 in section 2244(b) as opposed to petitions filed on behalf of persons in custody pursuant to a
state court judgment, Rittenberry argues that general habeas relief for state prisoners is a broader
category than petitions filed under section 2254, indicating that a separate avenue of relief,
specifically section 2241, provides an independent ground for his claim.
        Rittenberry also points to the language that existed in section 2244(b) prior to the enactment
of AEDPA in 1996. Like the other current limits on habeas petitions, that section previously applied
to all petitions on behalf of persons in custody pursuant to a state court judgment. AEDPA,
however, changed the language, applying the limitations on successive petitions to petitions filed
“under § 2254.” According to Rittenberry, this change in language evinces an intention by Congress
to modify the limitation and to exclude petitions filed under section 2241. As a result, Rittenberry
claims, successive section 2241 petitions are now governed by the federal common law restrictions
on the writ articulated by the Supreme Court in Salinger v. Loisel, 265 U.S. 224 (1924). Rittenberry
believes that the more lenient approach under section 2241 was intentionally adopted to allow
successive petitions to be heard in cases where a petitioner might not have a compelling argument
to meet the high standard of actual innocence, but nevertheless was subject to an unconstitutional
state court proceeding, as he claims he was by virtue of “Tennessee’s Catch 22.”
        Rittenberry also relies on a concurring opinion by Judge Tjoflat of the Eleventh Circuit that
presents a well-reasoned analysis comparing the habeas statutes, ultimately determining that section
2241 can support a petition independently of the requirements of section 2254. Thomas v. Crosby,
371 F.3d 782, 803 (11th Cir. 2004) (Tjoflat, J., concurring). Judge Tjoflat concluded that based on
the statutory language, section 2254 applies only to petitions brought by convicted state prisoners,
while section 2241 applies to any state prisoners, whether or not they had been convicted. Id. at 803.
The different class of state prisoners to whom the statutes apply is significant to the issue here —

         1
           Part (c) of the statute limits petitions in cases where the Supreme Court has entered a previous judgment, and
part (d) provides the one year statute of limitations.
No. 05-5606               Rittenberry v. Morgan                                                                  Page 5


because pre-conviction prisoners are unaffected by section 2254, it cannot be said that section 2241
is effectively modified in its entirety by the requirements of section 2254, as section 2254 does not
apply to all section 2241 petitioners. Judge Tjoflat also pointed out that Congress had in the past
enacted seemingly redundant habeas statutes, and that in Ex parte Yerger, 75 U.S. 85 (1869), the
Supreme Court had ruled that federal prisoners could bring actions under either of the two statutes,
rejecting the claim that the newer statute displaced the original. Based on differences in language
between the statutory provisions and canons of statutory construction, similar to those that
Rittenberry advances here, Judge Tjoflat concluded that there are in fact two different and
independent routes for post-conviction state prisoners to bring habeas petitions. Id.
       The state counters that Rittenberry’s “dual gate theory” seeks an end-run around the
procedural requirements of section 2254, emphasizing that if a habeas petitioner could so easily
avoid the strict requirements of AEDPA, nobody would file under section 2254, and the statute
would become a nullity. This position is supported by the great weight of federal court decisions,
which consistently view “§§ 2241 and 2254 as governing a single post-conviction remedy, with the
§ 2254 requirements applying to petitions brought by a state prisoner in custody pursuant to the
judgment of a State court, giv[ing] meaning to § 2254 without rendering § 2241(c)(3) superfluous.”
Thomas, 371 F.3d at 786. Indeed, Judge Tjoflat’s concurrence upon which Rittenberry relies
occurred in a case where the Eleventh Circuit panel reached this exact conclusion. Id.
         Three cases from this circuit have reached similar conclusions and essentially rejected the
“dual gate” theory, although the issue squarely before us is yet to be addressed in a published
opinion. See Greene v. Tennessee Dep’t Of Corrections, 265 F.3d 369 (6th Cir. 2001) (“[W]hen a
prisoner begins in the district court, § 2254 and all associated statutory requirements [including
COA’s under § 2253, if applicable] apply no matter what statutory label the prisoner has given the
case. (Roughly speaking, this makes § 2254 the exclusive vehicle for prisoners in custody pursuant
to a state court judgment who wish to challenge anything affecting that custody, because it makes
clear that bringing an action under § 2241 will not permit the prisoner to evade the requirements of
§ 2254.)”);2 Byrd v. Bagley, 37 F. App’x 94 (6th Cir. 2002) (unpublished); Long v. Kentucky, 80 F.
App’x 410 (6th Cir. 2003) (unpublished).
        We adopt the reasoning of these prior Sixth Circuit cases today, and hold that section
2244(b) applies  to any habeas corpus petition seeking relief from custody pursuant to a state court
judgment.3 Rittenberry does present a persuasive argument, based on the statutory language used
in the several habeas provisions. We see no meaningful way to explain the inconsistencies in the
wording of the statutes, such as the reference in section 2244(b) to “second or successive habeas

         2
          Although this language is relevant to the issue before us today, it is non-binding dicta, as the question before
this Court in Greene involved the issuance of certificates of appealability under 28 U.S.C. § 2253, as opposed to the
prerequisites for filing a successive habeas petition under section 2244(b). Even so, its reasoning is persuasive on the
issue we address.
         3
           It appears that in so doing, we join a number of other federal courts of appeals that have addressed the issue.
See Thomas, 371 F.3d at 786 (11th Cir. 2004) (“§§ 2241 and 2254 . . . govern[] a single post-conviction remedy, with
the § 2254 requirements applying to petitions brought by a state prisoner in custody pursuant to the judgment of a State
court”); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (holding that “[r]oughly speaking, § 2254 [is] the
exclusive vehicle for prisoners in custody pursuant to a state court judgment who wish to challenge anything affecting
that custody, because it makes clear that bringing an action under § 2241 will not permit the prisoner to evade the
requirements of § 2254”); Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (“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.”); Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (“[I]f
an application that should be brought under 28 U.S.C. § 2254 is mislabeled as a petition under section 2241, the district
court must treat it as a section 2254 application instead. It is the substance of the petition, rather than its form, that
governs.” (citations omitted)); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (A petitioner “can only obtain habeas
relief through § 2254, no matter how his pleadings are styled.”).
No. 05-5606                Rittenberry v. Morgan                                                                     Page 6


corpus application[s] under section 2254,” as opposed to the words used in virtually every other
limitation on the writ, which refer to petitions filed by “persons in custody pursuant to the judgment
of a State court.” Further, the pre-1996 version of section 2244(b) also contained the language
“persons in custody pursuant to the judgment of a State court.” There is no compelling answer to
what Congress could have intended, other than distinguishing between these types of habeas
petitions, when it changed this language to reach petitions filed “under section 2254.”
        Even so, we believe that Rittenberry’s comparative analysis reveals nothing more than poor
draftsmanship. The numerous federal decisions on this issue support the view that all petitions filed
on behalf of persons in custody pursuant to State court judgments are filed under section 2254 and
subject to AEDPA’s restrictions, even if language in section 2244(b) seems to indicate otherwise.
 Judge Tjoflat’s observation that there is a distinction between prisoners in custody pursuant to state
court judgments and those in pre-trial detention is accurate, Thomas, 371 F.3d at 803, and still means
that habeas petitioners in pre-trial custody do not have to meet the requirements of either section
2254 or section 2244(b). We simply believe that the language in section 2244(b) referencing
petitions brought “under section 2254” is intended to correspond to petitions brought by persons in
custody pursuant to state court judgments, as opposed to those in pre-trial detention. This reading
is also consistent with “AEDPA’s purpose to further the principles of comity, finality, and
federalism.” Duncan v. Walker, 533 U.S. 167, 178 (2001). Given AEDPA’s emphasis on respecting
final state court judgments (as opposed to pre-trial detainment by a state), there is not a good
explanation for why the limitations on successive petitions would not apply to a petitioner convicted
in state court if he files under section 2241,   while all the other AEDPA limitations would apply
regardless of how the petition is styled.4
         Ultimately, we believe that the “single gate” approach is best supported by reading section
2254(a) to not provide a separate source of habeas jurisdiction from section 2241 at all. Rather,
section 2254(a) is a limitation on the general grant of jurisdiction conferred in section 2241 that
applies to cases involving prisoners subject to state court judgments. Although the words “shall
entertain” at the outset of section 2254(a) suggest a grant of jurisdiction, when viewed as a whole,
the provision is in fact a limit on jurisdiction. The words “shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States” (emphasis added) from section 2254(a) are the functional equivalent of “shall not entertain
an application, unless the petitioner raises a federal claim.” Under this approach, there is really only
a single “gate” to federal habeas relief from state custody — through the general jurisdictional grant
in section 2241 — although all petitions seeking relief from state court convictions are more
specifically filed “under section 2254” as well, and are subject to its restrictions, as well as those of
section 2244(b). Thus, before filing a successive habeas petition, Rittenberry must seek pre-
authorization from this Court under section 2244(b).
                                                            III.
         For the foregoing reasons, we AFFIRM the district court’s dismissal of the petition. As an
alternative holding, Rittenberry requests that this Court “interpret section 2241 as being available
to state prisoners who make a showing of actual innocence.” We decline to address Rittenberry’s


         4
           Rittenberry argues that the difference is intended to accommodate those petitioners with more compelling
actual innocence claims who want to get to court faster based on the requirement that the court of appeals authorize a
successive petition to go forward within 30 days under section 2244(b)(3)(D). This is not a compelling explanation of
the distinction. The thirty-day time limit referenced by Rittenberry applies only to the preliminary decision of the court
of appeals authorizing a successive claim to go forward in the district court. If such a successive petition is allowed
through section 2244(b), there is no requirement that it be adjudicated any faster in the district court than a petition filed
under section 2241 that would not have to be pre-approved by the court of appeals.
No. 05-5606          Rittenberry v. Morgan                                                 Page 7


petition as a “section 2241” petition, but he remains free to subsequently seek authorization from
this Court to file a successive habeas petition as provided by section 2244(b).
