Day v. Chandler ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10916
Summary Calendar
GEORGE ALLEN DAY,
Petitioner-Appellant,
versus
ERNEST CHANDLER, Warden, FPC Beaumont,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-561-Y
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December 20, 2002
Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
George Allen Day, federal prisoner # 19407-077, appeals from
the dismissal of his purported 28 U.S.C. § 2241 petition in which
he sought to attack his guilty plea conviction in 1989 for false
entry in records of federally insured financial institutions and
wire fraud that was used by the U.S. Parole Commission to deny
him release on parole from a 1995 conviction for offenses related
to bank fraud. Day filed the petition in the Eastern District of
Texas, where he is incarcerated, but the district court concluded
*
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that this opinion should not be published and is not precedent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. 02-10916
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that the petition was actually a 28 U.S.C. § 2255 motion and
transferred it to the Northern District of Texas, where Day was
sentenced. The Northern District dismissed the petition on the
ground that because Day sought relief pursuant to 28 U.S.C.
§ 2241, it lacked jurisdiction to consider the petition. In the
alternative, the district court held that Day's petition was
successive.
Day argues that the Eastern District's characterization of
his petition was erroneous and that the court lacked jurisdiction
to transfer it. He further argues that the indictment for the
1989 conviction and his guilty plea were both defective.
Section 2255 provides the primary means of collaterally
attacking a federal conviction and sentence. Tolliver v. Dobre,
211 F.3d 876, 877 (5th Cir. 2000). A 28 U.S.C. § 2241 petition
is not a "substitute" for a motion under 28 U.S.C. § 2255, and a
"[§] 2241 petition that seeks to challenge the validity of a
federal sentence must either be dismissed or construed as a
section 2255 motion." Pack v. Yusuff, 218 F.3d 448, 451 (5th
Cir. 2000). Because Day's petition expressly attacked the
validity of his 1989 conviction, the Eastern District correctly
construed it as a 28 U.S.C. § 2255 motion. Id. The Eastern
District also properly transferred the petition to the Northern
District. See 28 U.S.C. §§ 1406(a), 1631.
Afforded liberal construction, Day argues that his petition
should not have been transferred because it falls under the
No. 02-10916
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"saving clause" of 28 U.S.C. § 2255. However, Day has not shown
that he meets the requirements of the savings clause. See
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
Once Day's pleading was transferred to the Northern
District, that court correctly noted that it was subject to
dismissal for being successive. See 28 U.S.C. §§ 2244(b)(3)(A),
2255. Because Day has previously filed 28 U.S.C. § 2255 motions
attacking his 1989 and 1995 convictions, the Northern District
could not consider the instant pleading unless Day first obtains
permission to file a successive 28 U.S.C. § 2255 motion. See
Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999). Day
requests that his brief be considered a request for such
permission. However, Day does not contend that he meets the
requirements for filing a successive motion, and he makes no
showing that his claims rely on a new rule of constitutional law
that was made retroactive by the Supreme Court to cases on
collateral review or on newly discovered evidence. See 28 U.S.C.
§ 2255; Henderson v. Haro, 282 F.3d 862, 863 (5th Cir. 2002).
AFFIRMED.