John W. BYRD, Jr., Petitioner, v. Margaret BAGLEY, Warden, Respondent, 37 F. App'x 94

BATCHELDER, Circuit Judge. Before us on appeal is the order of the district court denying John Byrd’s petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 and his motion for a stay of execution. Also before us is Byrd’s Emergency Motion for Stay of Execution Pending Appeal. For the reasons that follow, we deny the emergency motion for stay of execution and we affirm the judgment of the district court. On September 10, 2001, a panel of this court issued its decision denying Byrd’s request for a stay of execution and denying his request — couched as a “Motion To Determine Whether 28 U.S.C. § 2244(

b) of the ADEPA Applies To His Case” — to file a second and successive habeas petition. On September 11, 2001, a majority of the en banc court issued a stay of that order. By order of this Court filed on January 7, 2002, the stay was lifted and the clerk was ordered to issue the mandate “upon the panel decision” forthwith.

The substance of the September 10, 2001 panel decision was that John Byrd’s claim of actual innocence was not new; that Byrd could have raised it in his first, pre-AEDPA habeas petition but did not; and that Byrd was not entitled to raise the actual innocence claims under either preAEDPA standards or under AEDPA. In short, this court held that Byrd’s claim of actual innocence was barred. The claim of actual innocence that Byrd now seeks to bring by way of a petition for habeas corpus relief under 28 U.S.C. § 2241 is exactly the same claim that was the subject of the panel’s September 10, 2001 decision.

Byrd now claims that he is entitled to seek relief under § 2241 because § 2254 is inadequate or ineffective as a remedy. We have held in the context of § 2255 that relief under that

section is not inadequate or ineffective as a remedy simply because the petitioner was not successful. Charles v. Chandler, 180 F.3d 753, 757-58 (6th Cir.1999); see also Mans v. Young, No. 01-5200, 2002 U.S.App. LEXIS 2081, 2002 WL 193939 (6th Cir. Feb. 6, 2002). Furthermore, we agree with those circuits that have held that regardless of the label on the statutory underpinning for the petition, habeas petitions of state prisoners are governed by 28 U.S.C. § 2254. See, e.g., Coady v. Vaughn, 251 F.3d 480, 484-85 (3rd Cir.2001) (“ With respect to habeas petitions filed by state prisoners pursuant to

Section 2254, Congress has restricted the availability of second and successive petitions through

Section 2244(b). Allowing Coady to file the instant petition in federal court pursuant to

Section 2241 without reliance on

Section 2254 would circumvent this particular restriction.”). See also 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.” (citing Greenawalt v. Stewart, 105 F.3d 1287, 1287-88 (9th Cir. 1997))). We hold that Byrd’s newest petition is in fact governed by the requirements of 28 U.S.C. § 2254.

This petition therefore cannot be filed without authorization by this court, because it constitutes a second and successive petition. To the extent that Byrd seeks by this petition to obtain that authorization, it is DENIED. Because the relief sought in this petition is exactly the same relief that was considered by this court and denied in its order of September 10, 2001, we further hold that the district court correctly held that Byrd is not entitled to the relief he seeks. “A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Accordingly, we DENY the emergency motion for stay of execution; we AFFIRM the judgment of the district court dismissing Byrd’s petition and denying Byrd’s motion for a stay of execution.