Binion v. Chandler

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 8, 2002
• Docket: 02-40737
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40737 Summary Calendar

CARL LYNN BINION,

Petitioner-Appellant,

versus

ERNEST V. CHANDLER, Warden,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:02-CV-174 -------------------- October 4, 2002

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

Carl Binion, federal prisoner no. 94553-080, filed a petition

for habeas corpus under 28 U.S.C. § 2241 in the Eastern District of

Texas, where he was incarcerated for drug-trafficking and firearm-

use convictions 1999. He argued that his firearm conviction was

invalid because his indictment failed to charge a predicate drug

sale in which he used a firearm.

The district court correctly construed the petition as a

motion under 28 U.S.C. § 2255 because Binion was attacking the

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. legality of his conviction and sentence rather than the manner of

execution of his sentence. Tolliver v. Dobre, 211 F.3d 876, 877-78

(5th Cir. 2000). The district court also correctly determined that

Binion’s case does not fit within the “savings clause” of 28 U.S.C.

§ 2255 because the remedy under 28 U.S.C. § 2255 is not “inadequate

or ineffective.” See 28 U.S.C. § 2255; Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001); Solsona v. Warden,

F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987).

The district court for the Eastern District of Texas lacked

jurisdiction over Binion’s properly construed 28 U.S.C. § 2255

motion because Binion’s conviction occurred in the Western District

of Texas. See United States v. Weathersby, 958 F.2d 65, 66 (5th

Cir. 1992) (motion under 28 U.S.C. § 2255 must be filed in district

of conviction and sentence); Solsona, 821 F.2d at 1131-32.

Although the district court dismissed Binion’s 28 U.S.C. § 2255

motion as untimely, we affirm the dismissal on grounds that the

district court lacked jurisdiction to consider the motion. See

Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th

Cir. 1981) (district court can be affirmed on grounds not relied on

by district court).

The judgment of the district court is

AFFIRMED.