Anthony Parker v. Eric Holder, Jr. ( 2011 )

Case: 10-30942 Document: 00511454552 Page: 1 Date Filed: 04/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2011
No. 10-30942
Summary Calendar Lyle W. Cayce
Clerk
ANTHONY DEWAYNE PARKER,
Petitioner-Appellant
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:09-CV-2148
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Anthony Dewayne Parker, federal prisoner # 13620-076, is serving a 327-
month sentence for being a felon in possession of a firearm. He appeals the
district court’s dismissal of a petition that he filed pursuant to 28 U.S.C. § 2241.
He argues that the district court should have interpreted the pleading as arising
under 18 U.S.C. § 3569 because he alleged that he was being imprisoned for the
nonpayment of a fine. Parker also contends that the district court failed to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-30942 Document: 00511454552 Page: 2 Date Filed: 04/22/2011
No. 10-30942
address the merits of his constitutional claim and to conduct an evidentiary
hearing to examine the basis for his claim.
The record supports that the district court reasonably could have
construed Parker’s pleading as arising under § 2241. Parker requested a habeas
petition from the court and filed a petition pursuant to § 2241 that ostensibly
raised claims regarding sentencing that are cognizable in a habeas petition. See
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (noting that federal habeas
petitions are used to challenge the imposition or execution of a sentence). The
court could not construe Parker’s sentencing claims as arising under 28 U.S.C.
§ 2255 because he had previously filed § 2255 motions challenging his instant
conviction. See Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999). To the
extent that the court concluded that the petition did not qualify for the “savings
clause” of § 2255, Parker has effectively waived any challenge to that
determination by not addressing it. See Brinkmann v. Dallas County. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Moreover, to the extent that
the petition was dismissed for lack of jurisdiction, the district court was not
required to address the merits of Parker’s claims or to conduct an evidentiary
hearing regarding the claims.
Parker’s assertion that the court should have construed his petition as
arising under § 3569 lacks merit. Section 3569 established a procedure whereby
an indigent prisoner could obtain release from imprisonment if he were being
held solely for the non-payment of a fine. United States v. Estrada, 878 F.2d
823, 824 (5th Cir. 1989). Section 3569 was repealed in 1984, effective November
1, 1987. See 18 U.S.C.A. Pt. II, Ch. 227, preceding § 3551 (West 2010).
Parker is not imprisoned for the non-payment of a fine or any other debt.
Parker also was convicted in 2001, i.e., after the repeal of § 3569 took effect.
Accordingly, if Parker’s petition was a motion under § 3569, it would have been
subject to dismissal by the district court as an unauthorized motion over which
the court lacked jurisdiction. See United States v. Early, 27 F.3d 140, 141 (5th
2
Case: 10-30942 Document: 00511454552 Page: 3 Date Filed: 04/22/2011
No. 10-30942
Cir. 1994). The district court could not construe the pleading as something over
which it lacked jurisdiction. See Hooker, 187 F.3d at 681-82.
AFFIRMED
3