Gonzalez v. Miles ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50358
Summary Calendar
JOEL GONZALEZ,
Petitioner-Appellant,
versus
R.D. MILES, Warden,
Federal Correctional Institute, Bastrop,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-397-SS
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September 30, 2002
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges,
PER CURIAM:*
Joel Gonzalez, federal prisoner # 63438-079, was convicted
by a jury of conspiracy to possess with the intent to distribute
more than 1,000 kilograms of marijuana, possession with the
intent to distribute more than 1,000 kilograms of marijuana, and
money laundering. Gonzalez appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition challenging his 235
month sentence. Gonzalez argues that his sentence is illegal
*
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that this opinion should not be published and is not precedent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. 02-50358
-2-
because it was based on 3100 pounds of marijuana and the direct
appeal of his codefendants held that only 1500 pounds had been
proved. See United States v. Leal, 74 F.3d 600 (5th Cir. 1996).
The district court dismissed Gonzalez’s habeas corpus
application under 28 U.S.C. § 2241 because his claim was outside
the scope of 28 U.S.C. § 2241. The district court construed the
application as a motion under 28 U.S.C. § 2255 and held that the
motion must have been filed in the Southern District of Texas.
The district court also held that the motion was successive and
could not be filed without leave of this court.
Gonzalez argues that he may proceed under 28 U.S.C. § 2241
because 28 U.S.C. § 2255 does not provide him with an adequate or
effective remedy. See Pack v. Yusuff, 218 F.3d 448, 452 (5th
Cir. 2000). Gonzalez cannot prevail in his argument because he
has not shown that (1) his claim is based on a retroactively
applicable Supreme Court decision which establishes that he may
have been convicted of a nonexistent offense, and (2) his claim
was foreclosed by circuit law at the time when the claim should
have been raised in his trial, appeal, or first 28 U.S.C. § 2255
motion. Henderson v. Haro, 282 F.3d 862, 863 (5th Cir. 2002).
The district court’s dismissal of Gonzalez’s 28 U.S.C. § 2241
application is AFFIRMED.
AFFIRMED.