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Eldson McGHEE, Petitioner-Appellant, v. Jack HANBERRY, Warden, Atlanta Federal Penitentiary, et al., etc., Respondents-Appellees

United States Court of Appeals for the Fifth Circuit1979-10-03No. No. 79-1517
604 F.2d 9

Summary

Holding. The district court's denial of habeas relief was affirmed because McGhee failed to establish that the § 2255 remedy was inadequate or ineffective, and he may not use a habeas petition under § 2241 as an alternative remedy for claims already rejected in a § 2255 motion.

McGhee was convicted of bank robbery-related offenses and sentenced to consecutive prison terms. He previously pursued direct appeal and a collateral attack under 28 U.S.C. § 2255, both unsuccessful. He then filed a habeas corpus petition under 28 U.S.C. § 2241, rearguing the same defect claim and citing an older precedent. The court addressed whether a habeas petition could proceed when a § 2255 motion had already been denied on the same grounds.

The court established that § 2255 motions are the proper vehicle for collateral attacks on federal sentences, and habeas relief under § 2241 is available only when the defendant shows that § 2255 is inadequate or ineffective. A prior unsuccessful § 2255 motion alone does not demonstrate inadequacy or ineffectiveness. McGhee offered only conclusory assertions without factual support showing why § 2255 was inadequate, and therefore could not use habeas as an alternative remedy. The court also rejected his reliance on an older case that predated the § 2255 statute.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Proper remedy for collateral attacks on federal sentences: § 2255 versus § 2241
  • Requirements for showing inadequacy or ineffectiveness of § 2255 remedy
  • Whether prior unsuccessful § 2255 motion alone supports habeas relief

Procedural posture

The petitioner appealed the district court's denial of his habeas corpus petition filed under 28 U.S.C. § 2241, following prior unsuccessful direct appeal and § 2255 collateral attack.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

Appellant was convicted under Counts One, Two, Three and Seven of a seven count indictment charging various offenses arising from the robbery of the First State Bank in Marshallville, Georgia. McGhee was sentenced to life imprisonment for his conviction under Count Three (taking a hostage during the armed robbery of a bank, 18 U.S.C. § 2113(e)) and to five years imprisonment for his conviction under Count Seven (conspiracy, 18 U.S.C. § 371). The court ordered the sentences to run consecutively. On direct appeal, this Court reversed appellant’s conviction under Count One, affirmed appellant’s convictions under Counts Two, Three, and Seven, and found the reversal of the conviction under Count One not to effect the sentences imposed under Counts Three and Seven. U. S. v. McGhee, 488 F.2d 781 (5th Cir.), cert. denied, 417 U.S. 971, 94 S.Ct. 3176, 41 L.Ed.2d 1142 (1974). McGhee filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 arguing that Count Three of the indictment under which he was convicted was defective, a ground previously argued unsuccessfully on direct appeal. The district court denied relief and this Court affirmed the denial, without published opinion. McGhee v. U. S., 529 F.2d 521 (5th Cir. 1976), rehearing en banc denied, 542 F.2d 575 (5th Cir. 1976), cert, denied, 430 U.S. 938, 97 S.Ct. 1567, 51 L.Ed.2d 785 (1977).

Appellant filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, again arguing that Count Three of the indictment was defective. In addition, Appellant cited this Court’s prior decision in Dawes v. Gough, 170 F.2d 396 (5th Cir. 1948) as grounds for habeas relief. The district court denied appellant’s petition and this appeal followed.

A motion to vacate sentence pursuant to 28 U.S.C. § 2255 provides the primary method of collateral attack on a federally imposed sentence. Walker v. United States, 429 F.2d 1301 (5th Cir. 1970). A petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is not a substitute for a motion under § 2255; and a petition under § 2241 attacking custody resulting from a federally imposed sentence may be entertained only where the petitioner establishes that the remedy provided for under § 2255 “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255; Wood v. Blackwell, 402 F.2d 62, 63 (5th Cir. 1968), cert, denied, 393 U.S. 1060, 89 S.Ct. 703, 21 L.Ed.2d 702 (1969). It is well established that a prior unsuccessful § 2255 motion is insufficient, in and of itself, to show the inadequacy or ineffectiveness of the remedy. Walker v. United States, 429 F.2d at 1303; Accardi v. Blackwell, 412 F.2d 911, 914 (5th Cir. 1969). The burden of coming forward with evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner. Accardi v. Blackwell, 412 F.2d at 914. Appellant in the instant case alleges no facts indicating that the § 2255 remedy is inadequate or ineffective. Rather he makes a conclusory allegation of the inadequacy or ineffectiveness by reference to his previously unsuccessful § 2255 motion. In so doing, appellant fails to make the requisite showing that would allow the district court to entertain his petition for a writ of habeas corpus under § 2241. Id.

Appellant’s reliance on Dawes v. Gough is misplaced. Though Dawes was handed down by this Court one month after the effective date of 28 U.S.C. § 2255, the statute was not discussed. Obviously, the judgment appealed from predated its enactment. As the statute and our subsequent precedent make clear, Dawes is completely inapposite to the facts of this case.

The judgment of the district court is affirmed.

AFFIRMED.