Haney v. Purdy ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40730
Summary Calendar
JAMES HOWARD HANEY, III,
Petitioner-Appellant,
versus
MICHAEL A. PURDY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-425
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June 13, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
James Howard Haney, III, filed a 28 U.S.C. § 2241 petition
in the district court. The district court construed this
petition as a § 2255 motion and dismissed it, as Haney had filed
two previous § 2255 motions and had not received permission from
this court to file a successive § 2255 motion. Haney moves this
court for a COA to appeal the district court’s dismissal of this
§ 2255 motion. Because Haney has not made a credible showing
that the district court erred in construing his § 2241 petition
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-40730
-2-
as a § 2255 motion and dismissing it, we DENY his request for a
COA. See Slack v. McDaniel, 120 S. Ct. 1595 (2000).
The district court’s order is arguably ambiguous and could
possibly be read as simply dismissing Haney’s § 2241 petition on
the basis that his claims are not properly raised in a § 2241
petition. To the extent that the order could be so read, this
conclusion is not erroneous. See United States v. Cleto, 956
F.2d 83, 84 (5th Cir. 1992). Accordingly, we alternatively
AFFIRM the judgment of the district court to the extent that
court’s order could be read as dismissing Haney’s § 2241 petition
because it does not state claims upon which § 2241 relief could
be granted. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir.
1979); see also Tolliver v. Dobre, __ F.3d __ (5th Cir. May 3,
2000, No. 99-41420) 2000 WL 530326 *1.