Escamilla v. Warden USP Beaumont ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40613
Conference Calendar
GEORGE ESCAMILLA,
Petitioner-Appellant,
versus
WARDEN USP BEAUMONT;
UNITED STATES PAROLE COMMISSION,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-225
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
George Escamilla, federal prisoner # 54920-146, appeals the
district court’s denial of his 28 U.S.C. § 2241 petition. He
argues that his indictment was defective in that it did not
allege that he was subject to a life term of special parole and
that his sentence should be vacated in view of the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Because Escamilla is challenging errors that occurred at or
before sentencing, his claims should have been raised in a 28
U.S.C. § 2255 motion. See Cox v. Warden, Federal Detention Ctr.,
*
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that this opinion should not be published and is not precedent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. 01-40613
-2-
911 F.2d 1111, 1113-14 (5th Cir. 1990). The district court
should have construed the petition as a 28 U.S.C. § 2255 motion
and dismissed it for lack of jurisdiction as Escamilla was
convicted in the District Court for the Western District of
Texas, but he filed this petition in the District Court for the
Eastern District of Texas. Ojo v. Immigration and Naturalization
Service, 106 F.3d 680, 683 (5th Cir. 1997). Further, Escamilla
has filed a previous 28 U.S.C. § 2255 motion and has not obtained
this court’s authorization to file a successive 28 U.S.C. § 2255
motion. See § 2255 ¶ 8. Because the district court lacked
jurisdiction, this court lacks appellate jurisdiction to review
the issues on the merits. See United States v. Key, 205 F.3d
773, 775 (5th Cir. 2000).
AFFIRMED.