Gadson v. Fleming

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 01-10265
(Summary Calendar)
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FLOYD GADSON,
Petitioner - Appellant,
versus
L. E. FLEMING, Warden,
Defendant - Appellee.
Appeal from the United States District Court
For the Northern District of Texas
USDC No. 4:01-CV-82-A
November 29, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Floyd Gadson, federal prisoner # 09390-058, appeals the dismissal of his 28 U.S.C. § 2241
petition. He challenges his conviction and sentence for conspiracy to possess with intent to distribute
cocaine on several grounds.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Because Gadson has brought his claims under § 2241, a certificate of appealability is not
required. Wesson v. U.S. Penitentiary Beaumont, Tex., 305 F.3d 343, 246 (5th Cir. 2002). “In
reviewing the denial of habeas relief, a district court’s findings of fact are reviewed for clear error and
issues of law are reviewed de novo.” Id.
Gadson’s § 2241 petition, which attacks his conviction and sentence in the Western District
of North Carolina, was filed in the Northern District of Texas. “[Section] 2255, not § 2241, is the
proper means of attacking errors that occurred during or before sentencing.” Ojo v. I.N.S., 106 F.3d
680, 683 (5t h Cir. 1997). As a general matter, only the sentencing court has jurisdiction to hear
claims under § 2255. Id. Because Gadson was convicted and sentenced in North Carolina, the Texas
district court lacked jurisdiction to construe his petition as a § 2255 motion. Id. (“Although a § 2241
petition attacking matters within the province of § 2255 should be construed as a § 2255 petition .
. . a court without jurisdiction to hear a § 2255 petition can hardly be expected to do that.”) (citation
omitted).
Nevertheless, Gadson’s petition may be considered under § 2255’s savings clause if he can
demonstrate that seeking § 2255 relief from the North Carolina district court would provide him with
an inadequate or ineffective remedy. Wesson, 305 F.3d at 347. He must show that “(1) his claims
are based on a retroactively applicable Supreme Court decision which establishes that he may have
been convicted of a nonexistent offense, and (2) his claims were foreclosed by circuit law at the time
when t he claims should have been raised in his trial, appeal, or first § 2255 motion.” Id. (citing
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001)).
Three of the issues raised by Gadson on appeal are actually a single claim that his sentence
was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Gadson argues that his sentence
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exceeded the statutory maximum for the offense charged in the indictment, which did not allege a
drug quantity. We have recently held that Apprendi is not retroactive and thus cannot serve as the
basis for attacking a sentence in a § 2241 petition under § 2255’s savings clause. Wesson, 305 F.3d
at 347 (“[T]his court and all other circuit courts of appeals that have addressed this issue have held
that Apprendi is not retroactive on collateral review of initial § 2255 motions. The analysis in these
cases applies even more strongly to [petitioner’s] case under § 2241.”) (citations omitted).
Gadson does not contend that any retroactive Supreme Court decision permits him to bring
his remaining claims))insufficiency of the evidence and double jeopardy))under the savings clause
of § 2255. Moreover, these issues were not raised below and thus are not properly before us. See
United States v. Samuels, 59 F.3d 526, 529-30 (5th Cir. 1995).
For the foregoing reasons, the district court’s dismissal of Gadson’s § 2241 petition is
AFFIRMED.
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