Farquhar v. Conner

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 23, 2003
• Docket: 02-41290
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-41290 Conference Calendar

GEORGE D. FARQUHAR,

Petitioner-Appellant,

versus

N. LEE CONNER, Warden,

Respondent-Appellee.

Consolidated with No. 02-41411

N. LEE CONNER,

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:01-CV-72 USDC No. 5:01-CV-88 --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. No. 02-41290 c/w No. 02-41411 -2-

George D. Farquhar, federal prisoner # 28074-077, appeals

the district court’s dismissal of his two 28 U.S.C. § 2241

petitions challenging his convictions for failing to appear for

sentencing hearings on prior convictions. Because Farquhar’s

28 U.S.C. § 2241 petitions challenged the legality of his

convictions, Farquhar had to show that 28 U.S.C. § 2255 provided

him with an inadequate or ineffective remedy. See Pack v.

Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). “[T]he savings clause

of § 2255 applies to a claim (i) that is based on a retroactively

applicable Supreme Court decision which established that the

petitioner may have been convicted of a nonexistent offense and

(ii) that was foreclosed by circuit law at the time when the

claim should have been raised in the petitioner’s trial, appeal,

or first § 2255 motion." Reyes-Requena v. United States, 243

F.3d 893, 904 (5th Cir. 2001).

Farquhar argues that the district court improperly construed

his 28 U.S.C. § 2241 petitions as successive 28 U.S.C. § 2255

applications. The record, however, belies Farquhar’s claim and

shows that the district court properly considered whether

Farquhar could bring his claims in 28 U.S.C. § 2241 petitions

under the savings clause of 28 U.S.C. § 2255.

Farquhar has also not shown that 28 U.S.C. § 2255 provided

him with an ineffective or inadequate remedy. Neither a prior

R. 47.5.4. No. 02-41290 c/w No. 02-41411 -3-

unsuccessful 28 U.S.C. § 2255 motion, nor the inability to meet

the requirement for bringing a successive 28 U.S.C. § 2255 motion

makes 28 U.S.C. § 2255 inadequate or ineffective. Tolliver v.

Dobre, 211 F.3d 876, 878 (5th Cir. 2000).

Farquhar further argues that he is actually innocent of

willfully failing to appear. Because Farquhar fails to identify

any retroactively applicable Supreme Court decisions

demonstrating that he was convicted of a non-existent offense,

this challenge cannot be brought in a 28 U.S.C. § 2241 petition.

See Reyes-Requena, 243 F.3d at 904.

We do not consider Farquhar’s argument that an alleged

defect in the indictment deprived the trial court of subject

matter jurisdiction because it is raised for the first time in

his reply brief. See Knighten v. Commissioner, 702 F.2d 59, 60 &

n.1 (5th Cir. 1983). Accordingly, the judgments of the district

court are AFFIRMED.