McDonald v. Fleming , 107 F. App'x 395 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-11314
Summary Calendar
WILLIE GEORGE MCDONALD,
Petitioner-Appellant,
versus
L. E. FLEMING, Warden, Federal Medical Center-Fort Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-808-A
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Before SMITH, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Willie George McDonald, federal prisoner # 19369-077, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition for
writ of habeas corpus. McDonald contends that the district court
abused its discretion and deprived him of his Articles I and III
rights to petition the court in redress of grievances against the
government when it construed his 28 U.S.C. § 2241 petition as a
successive 28 U.S.C. § 2255 motion and dismissed it for lack of
jurisdiction. He argues that the district court should have
*
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this opinion should not be published and is not precedent except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. 03-11314
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liberally construed his petition and recharacterized it as a writ
of mandamus or prohibition, writ of error coram nobis, or writ of
audita querela under 28 U.S.C. § 1651.
McDonald’s petition collaterally challenged the validity of
his sentence and, thus, the district court properly construed it as
a 28 U.S.C. § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876,
877-78 (5th Cir. 2000). McDonald neither requested nor obtained
the required certification from this court to file a successive 28
U.S.C. § 2255 motion. Further, McDonald’s claims do not fall
within the savings clause of 28 U.S.C. § 2255 because he has not
established that the remedy provided for under 28 U.S.C. § 2255 is
inadequate or ineffective to test the legality of his detention.
See id. at 878. Moreover, McDonald’s contention that the district
court should have liberally construed his petition as a writ of
mandamus or prohibition, writ of error coram nobis, or writ of
audita querela is unavailing. The district court denied McDonald’s
18 U.S.C. § 3582 motion in which he raised the same ground for
relief asserted in the instant petition. McDonald is still in
custody, has not completed his sentence, and cannot demonstrate
that he has no remedy under 28 U.S.C. §§ 2241 or 2255. See United
States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998); United States v.
Banda, 1 F.3d 354, 356 (5th Cir. 1993). The district court
properly dismissed his petition for lack of jurisdiction.
The Government has filed a motion to dismiss the appeal or for
summary affirmance in lieu of filing a brief. In the alternative,
No. 03-11314
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the Government moves for an extension of time in which to file a
brief. The motion is DENIED as moot.
APPEAL DISMISSED; MOTION DENIED.