Espericueta v. Fox ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 07-50304
Conference Calendar Charles R. Fulbruge III
Clerk
ISRAEL ESPERICUETA
Petitioner-Appellant
v.
WARDEN JOHN B FOX
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-521
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Israel Espericueta, federal prisoner # 59164-079, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition challenging his convictions and
sentences for conspiracy to possess with intent to distribute cocaine, conspiracy
to launder money, and aiding and abetting money laundering. The district court
determined that Espericueta’s claims should have been brought under 28 U.S.C.
§ 2255 and that Espericueta had not shown that he was entitled to bring his
claims under the savings clause of § 2255.
*
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should not be published and is not precedent except under the limited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. 07-50304
Espericueta argues that he was entitled to raise his claims under § 2241
because (1) he was factually and actually innocent of the firearms possession on
which an enhancement of his sentence under the Sentencing Guidelines was
based; and (2) his remedies under § 2255 are inadequate or ineffective because
he has already filed a § 2255 motion and his claims do not meet the standard for
filing a successive § 2255 motion. Because Espericueta’s challenge to the
sentencing court’s application of the Guidelines is not based on a retroactively
applicable Supreme Court decision establishing that the offenses of which he
was convicted no longer qualify as violations of law, he has not shown that the
district court’s determination that he was not entitled to bring his claims under
the § 2255 savings clause was erroneous. See Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). Furthermore, a prior unsuccessful § 2255
motion, or the inability to meet the requirements for filing a successive § 2255
motion, does not make the § 2255 remedy inadequate or ineffective. See Tolliver
v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Espericueta also argues that because the district court determined that he
failed to meet the Reyes-Requena test, the application of § 2255 to his case
impermissibly violated his constitutional rights under the First Amendment and
the Suspension Clause to file a habeas petition. Reyes-Requena is binding
precedent, and the savings clause of § 2255 does not unconstitutionally suspend
a prisoner’s right to seek a writ of habeas corpus. Wesson v. U.S. Penitentiary
Beaumont, 305 F.3d 343, 346-47 (5th Cir. 2002).
AFFIRMED.
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