Davis-Rice v. United States

224 F. App'x 702

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2007
• Docket: No. 05-16810
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Astarte Davis-Rice appeals pro se from the district court’s order denying her petition under 28 U.S.C. § 2241 to “modify the execution of’ her sentence. We vacate the district court’s order and remand with instructions to dismiss her petition.

In her petition, appellant sought the same relief the district court had denied her in disposing of her previous § 2255 motion. Based on our review of the record, it does not appear, and appellant does not contend, that the remedy afforded by § 2255 was “inadequate or ineffective” to allow appellant to challenge her sentence. See 28 U.S.C. § 2255 ¶ 5; Ivy v. Pontesso, 828 F.3d 1057, 1059 (9th Cir.2003). The district court should therefore have construed appellant’s § 2241 petition as a second or successive § 2255 motion, see Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir.2001), and dismissed it for lack of jurisdiction. See Burton v. Stewart, — U.S. -, 127 S.Ct. 793, 796, 166 L.Ed.2d 628 (2007). We therefore remand this case to the district court and instruct it to do so.

Furthermore, we decline to authorize appellant to file a second or successive § 2255 motion because appellant does not allege that her claim relies on either a new rule of constitutional law or newly discovered evidence. See 28 U.S.C. § 2255 ¶ 7.

Appellant has moved for judgment in her favor because the Government chose not to file an answering brief; we deny the motion. See Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1478 (9th Cir.1992). We also deny appellant’s motion for appointment of counsel as moot.

VACATED and REMANDED with instructions.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.