Bond v. Miles

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 1, 2000
• Docket: 99-50686
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50686 Summary Calendar

LEMUEL AMON BOND, III,

Petitioner-Appellant,

versus

R. MILES, Warden,

Respondent-Appellee.

__________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CV-375-SS __________________________________________

April 28, 2000

Before HIGGINBOTHAM, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

Lemuel Amon Bond, III (“Bond”), federal prisoner # 54995-079, appeals the denial without

prejudice of his 28 U.S.C. § 2241 habeas corpus petition, which the district court construed as a

successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Bond argues that

because neither of his prior § 2255 motions was considered on the merits, the § 2255

remedy is inadequate or ineffective to test the legality of his detention, and he is entitled to challenge

his sentence in a § 2241 habeas petition.

Jurisdiction over a § 2255 motion lies in the district where the movant’s sentence was

imposed. See § 2255; Ojo v. Immigration and Naturalization Serv., 106 F.3d 680, 683 (5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1997). In Bond’s case, that is the Southern District of Texas. Accordingly, the district court did not

have jurisdiction to construe Bond’s § 2241 petition as a § 2255 motion. See Ojo, 106 F.3d at 683;

see also Solsona V. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987).

Additionally, Bond is not entitled to challenge his sentence in a § 2241 petition. Because

Bond failed to appeal the district court’s dismissal of his second § 2255 motion as successive, he has

failed to establish the ineffectiveness or inadequacy of the § 2255 remedy. See Kaufman v.

Wilkinson, 237 F.2d 519, 520, n.1 (5th Cir. 1956); See Josey v. Humphrey, 210 F.2d 826, 827 (3d

Cir. 1954). Accordingly, the district court’s judgment should be affirmed on the ground that Bond

failed to state a claim for relief under § 2241. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.

1992) (court of appeals may affirm district court’s judgment on any basis supported by the record).

To the extent that Bond’s appeal seeks authorization to file a successive § 2255 motion, Bond

is instructed that he may file a separate motion with this court requesting such authorization. See §

2255.

AFFIRMED.