The district court dismissed petitioner Wayne Porter's 28 U.S.C. § 2241 petition for writ of habeas corpus. Porter filed a notice of appeal. This court construed the notice of appeal as a request for a certificate of appealability ("COA") and directed the district court to rule on the request. The district court subsequently denied the COA.

On its face, Porter's petition raises the same or similar claims that were raised in his original 28 U.S.C. § 2255 motion filed in the district court in North Carolina, where he was convicted. Porter is attacking the legality of his underlying convictions on double jeopardy grounds. A section 2255 motion to the sentencing court is generally the proper vehicle for challenging a conviction. See 28 U.S.C. § 2255; Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Although the district court recognized that Porter's contentions would be cognizable in a section 2255 motion, it did not explicitly construe the section 2241 petition as such.

This court has previously concluded that 28 U.S.C. § 2253(c)(1) does not require a COA in an appeal from an order denying a section 2241 petition where: (1) the detention complained of does not arise out of a process issued by a state court; or (2) it is not a section § 2255 proceeding. See Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997). In light of Forde, we must now decide whether a successive section 2255 motion disguised as a section 2241 petition requires a COA.

Merely labeling a section 2255 motion as a section 2241 petition does not overcome the bar against successive section 2255 motions. See 28 U.S.C. § 2255; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curiam), cert. denied, 528 U.S. 1178, 120 S.Ct. 1214, 145 L.Ed.2d 1115 (2000). It is apparent from the face of Porter's section 2241 petition that he raises previously unsuccessful claims attacking only the legality of his conviction and not the execution of his sentence. Cf. Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir. 1990) (stating a section 2255 motion can test only the legality of the sentence imposed, not the manner of execution); United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (holding that petitioners may challenge the execution of their sentences by bringing a 28 U.S.C. § 2241 petition).

We will not permit a petitioner to circumvent the successive motion bar by bringing a section 2241 petition that otherwise would not require a COA. See 28 U.S.C. § 2253(c)(1); Forde, 114 F.3d at 879. Because we conclude that Forde does not apply where a federal prisoner raises claims challenging the legality of his underlying conviction and sentence, as opposed to the execution of his sentence, a petitioner attacking the conviction and sentence may not seek habeas relief under section 2241 in this court without a COA. Accordingly, the request for a COA is denied. See 28 U.S.C. § 2253(c)(2).

COA is DENIED.

Summaries of

Porter v. Adams

United States Court of Appeals, Ninth Circuit

Mar 22, 2001

244 F.3d 1006 (9th Cir. 2001)

holding that a successive 28 U.S.C. § 2255 motion disguised as a 28 U.S.C. § 2241 petition requires a certificate of appealability

Summary of this case from Fields v. U.S. Bureau of Prisons

holding that petitioners need a Certificate of Appealability to appeal from the denial of a Section 2241 petition that is merely a disguised Section 2255 petition

Summary of this case from Free v. Copenhaver

holding that petitioners need a Certificate of Appealability to appeal from the denial of a Section 2241 petition that is merely a disguised Section 2255 petition

Summary of this case from Simmons v. Zuniga

holding petitioner who raises claims challenging the legality of his conviction or sentence, as opposed to the execution of his sentence, may not seek habeas relief under section 2241 on appeal without a certificate of appealability

Summary of this case from Summers v. Quintana

finding that where "it is apparent from the face" of the § 2241 petition that the petitioner "raises previously unsuccessful claims attacking only the legality of his conviction and not the execution of his sentence," the petitioner is required to obtain a COA in order to appeal

Summary of this case from Glaria-Ramirez v. Babcock

affirming the denial of a § 2241 petition raising the same claims attacking petitioner's conviction that he unsuccessfully raised in a prior § 2255 motion

Summary of this case from Johnson v. U.S. Prob. & Pretrial

recognizing that a section 2241 petition is the proper vehicle for challenging the execution of a sentence while a section 2255 motion is the proper vehicle for attacking the legality of a conviction or sentence imposed

Summary of this case from Lopez-Aguilar v. United States

In Porter, a petitioner brought a § 2241 petition that, on its face, "raise[d] the same or similar claims that were raised in his original 28 U.S.C. § 2255 motion filed in the district court."

Summary of this case from Harrison v. Ollison

applying the COA requirement to a § 2241 motion and distinguishing Forde after concluding that the motion should be construed as a successive § 2255 motion to which § 2253(c) applied

Summary of this case from United States v. Kwok Chee Kwan

clarifying that § 2255 motions test the legality of the sentence imposed, while § 2241 petitions challenge the execution of the sentence

Summary of this case from United States v. Pitones-Rodriguez

explaining that a certificate of appealability is required when the § 2241 petition "raises previously unsuccessful claims attacking only the legality of his conviction and not the execution of his sentence."

Summary of this case from Rice v. Thompson

discussing distinction between sections 2255 and 2241

Summary of this case from United States v. Buenrostro

stating that a section 2255 motion is used for federal prisoners challenging the legality of a conviction

Summary of this case from Lucero v. Puentes

discussing distinction between sections 2255 and 2241

Summary of this case from United States v. Buenrostro

noting that Section 2241 is available only to challenge the manner of execution of a prisoner's federal sentence, not its legality

Summary of this case from Ali v. Johnson

noting that Section 2241 is available only to challenge the manner of execution of a prisoner's federal sentence, not its legality

Summary of this case from Green v. Fox

noting that Section 2241 is available only to challenge the manner of execution of a prisoner's federal sentence, not its legality

Summary of this case from Turner v. Milusnic

noting that Section 2241 is available only to challenge the manner of execution of a prisoner's federal sentence, not its legality

Summary of this case from Kunhart v. Guiterrez

noting exception in cases where § 2241 petition is merely disguise for § 2255 petition

Summary of this case from Vaughn v. Smith

In Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001), the Ninth Circuit held that a COA is required where, as here, a federal prisoner raises claims in § 2241 challenging the legality of his underlying conviction and sentence, as opposed to the execution of his sentence.

Summary of this case from Torres v. Sanders

discussing distinction between sections 2241 and 2255

Summary of this case from Ybarra v. Smith

Porter v. Adams

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Porter v. Adams

Porter v. Adams

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Porter v. Adams

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Porter v. Adams

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