Morales-Sosa v. Miles ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51300
Summary Calendar
MIGUEL ANGEL MORALES-SOSA,
Petitioner-Appellant,
versus
R. D. MILES, Warden of Federal
Correctional Institution, Bastrop,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CV-244-SS
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Miguel Angel Morales-Sosa (Morales), federal prisoner
# 31037-077, sentenced in the United States District Court for
the Northern District of Texas, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition. Morales argued in
his petition that the Government breached his plea agreement, his
plea was not voluntary, and the district court erred in accepting
the presentencing report. His petition was transferred to the
*
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that this opinion should not be published and is not precedent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. 02-51300
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United States District Court for the Western District of Texas,
which is located in the district where he is incarcerated. On
appeal, inter alia, Morales contends that his petition should not
have been dismissed by the custodial district court, but should
have been transferred back to the sentencing court for
disposition.
Because Morales’s petition challenges trial and sentencing
errors, it should be construed as a motion arising under 28
U.S.C. § 2255 unless Morales establishes that his claims fall
under the savings clause of 28 U.S.C. § 2255. Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). The savings clause applies
where “the remedy by motion is inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. § 2255.
Morales does not even attempt to carry the burden of proving
that his 28 U.S.C. § 2241 petition falls under the savings clause
of 28 U.S.C. § 2255. See Wesson v. U.S. Penitentiary Beaumont,
TX, 305 F.3d 343, 347 (5th Cir. 2002), cert. denied, 123 S. Ct.
1374 (2003). Consequently, Morales “may not avail himself of [28
U.S.C. §] 2241 relief in this case.” Pack, 218 F.3d at 453.
Therefore, Morales’s petition “must either be dismissed or
construed as a [28 U.S.C. §] 2255 motion." Id. at 452.
The custodial court did not have jurisdiction to hear
Morales’s instant petition construed as a 28 U.S.C. § 2255 motion
because claims under 28 U.S.C. § 2255 must be heard in the
sentencing court. See id. at 451; 28 U.S.C. § 2255. However,
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the sentencing court would not have jurisdiction over Morales’s
claims because Morales previously has filed a motion under 28
U.S.C. § 2255 attacking his conviction and sentence and he has
not obtained certification to file a successive motion under 28
U.S.C. § 2255. See Hooker v. Sivley, 187 F.3d 680, 681-82 (5th
Cir. 1999). Moreover, Morales has not made any showing that his
petition satisfies the applicable requirements for such a motion.
See Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002).
Consequently, the district court did not err in dismissing
Morales’s 28 U.S.C. § 2241 petition. See Pack, 218 F.3d at 453.
Accordingly, the judgment of the district court is hereby
AFFIRMED.