Opinion
CIVIL ACTION NO.: CV207-142.
August 22, 2008
ORDER
After an independent and de novo review of the record, the undersigned concurs with the Magistrate Judge's Report and Recommendation, to which Objections have been filed. In his Objections, Petitioner Johnny Gregory ("Gregory") asserts he withdrew his appeal because he discovered the Government breached the plea agreement by failing to file a Rule 35(b) motion on his behalf. Gregory ostensibly contends governmental action prevented him from making his claims at an earlier time and that he could bring his breach of plea agreement claims only pursuant to 28 U.S.C. § 2241. Gregory avers the remedy afforded by 28 U.S.C. § 2255 is inadequate, and, thus, he must proceed pursuant to section 2241. However, Gregory offers nothing more than his bare assertions that section 2255's remedy is inadequate or ineffective. The cases Gregory cites — Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999), Cooper v. United States, 199 F.3d 898 (7th Cir. 1999), and In re Davenport, 147 F.3d 605 (7th Cir. 1998) — underscore the Magistrate Judge's conclusions that Gregory fails to show that the remedy afforded by § 2255 is inadequate or ineffective to challenge the legality of his conviction and that Gregory has failed to satisfy that section's savings clause. As the Magistrate Judge alluded, procedural barriers to filing section 2255 motions, such as filing a second or successive § 2255 motion or filing a § 2255 motion outside of the applicable statute of limitations, do not render the remedy afforded by this statute inadequate or ineffective. See Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1271 n. 3 (11th Cir. 2000) (collecting cases which found the limitations period does not render the habeas remedy inadequate or ineffective); Darby v. Hawk-Sawyer, 405 F.3d 942, 945 (11th Cir. 2005) (concerning successive section 2255 motions).
The Magistrate Judge's Report and Recommendation is adopted as the opinion of the Court. Respondent's Motion to Dismiss is GRANTED. Gregory's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is DISMISSED. The Clerk of Court is authorized and directed to enter the appropriate judgment of dismissal.