Randle v. Dobre ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40699
Conference Calendar
SHELTON PAUL RANDLE,
Petitioner-Appellant,
versus
JONATHON DOBRE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-289
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June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Shelton Paul Randle, federal prisoner # 04786-078, appeals
the district court’s dismissal of his petition brought pursuant
to 28 U.S.C. § 2241 wherein he sought to challenge the enhanced
sentence he received after being convicted of possession with the
intent to distribute a controlled substance. He argues that
because he is precluded by the statute of limitations from filing
a motion pursuant to 28 U.S.C. § 2255, the district court erred
*
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that this opinion should not be published and is not precedent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. 01-40699
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when it determined that he had not demonstrated that the remedy
provided for under 28 U.S.C. § 2255 was inadequate. He argues
that he therefore should be allowed to proceed under 28 U.S.C.
§ 2241. We review the district court’s findings of fact for
clear error and issues of law de novo. See Moody v. Johnson, 139
F.3d 477, 480 (5th Cir. 1998).
A 28 U.S.C. § 2241 petition attacking a federally imposed
sentence may be considered if the petitioner establishes that the
remedy under 28 U.S.C. § 2255 is inadequate or ineffective to
test the legality of his detention. Tolliver v. Dobre, 211 F.3d
876, 877 (5th Cir. 2000). The burden of demonstrating the
inadequacy of the 28 U.S.C. § 2255 remedy rests with the
petitioner. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.
2001). In order to meet his burden, Randle must have shown that
his claim (1) was based on a retroactively applicable Supreme
Court decision which established that he may have been convicted
of a nonexistent offense, and (2) was foreclosed by circuit law
at the time when the claim could have been raised at trial, on
appeal, or a first 28 U.S.C. § 2255 motion. See Henderson v.
Haro, 282 F.3d 862, 863 (5th Cir. 2002). The inability to meet
these requirements does not render 28 U.S.C. § 2255 inadequate or
ineffective. Id. Moreover, 28 U.S.C. § 2255 is not inadequate
merely because a prisoner is unable to meet the requirements for
bringing a 28 U.S.C. § 2255 motion set forth in the AEDPA. See
Tolliver, 211 F.3d at 877 (petitioner attempting to circumvent
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the restriction on filing successive 28 U.S.C. § 2255 motions).
Thus, the fact that Randle is barred under the statute of
limitations from bringing his motion under 28 U.S.C. § 2255 does
not render the 28 U.S.C. § 2255 remedy inadequate. See id. The
judgment of the district court is AFFIRMED.