Gonzalez v. Miles

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 1, 2002
• Docket: 02-50358
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50358 Summary Calendar

JOEL GONZALEZ,

Petitioner-Appellant,

versus

R.D. MILES, Warden, Federal Correctional Institute, Bastrop,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-01-CV-397-SS -------------------- September 30, 2002

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges,

PER CURIAM:*

Joel Gonzalez, federal prisoner # 63438-079, was convicted

by a jury of conspiracy to possess with the intent to distribute

more than 1,000 kilograms of marijuana, possession with the

intent to distribute more than 1,000 kilograms of marijuana, and

money laundering. Gonzalez appeals the district court’s

dismissal of his 28 U.S.C. § 2241 petition challenging his 235

month sentence. Gonzalez argues that his sentence is illegal

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-50358 -2-

because it was based on 3100 pounds of marijuana and the direct

appeal of his codefendants held that only 1500 pounds had been

proved. See United States v. Leal, 74 F.3d 600 (5th Cir. 1996).

The district court dismissed Gonzalez’s habeas corpus

application under 28 U.S.C. § 2241 because his claim was outside

the scope of 28 U.S.C. § 2241. The district court construed the

application as a motion under 28 U.S.C. § 2255 and held that the

motion must have been filed in the Southern District of Texas.

The district court also held that the motion was successive and

could not be filed without leave of this court.

Gonzalez argues that he may proceed under 28 U.S.C. § 2241

because 28 U.S.C. § 2255 does not provide him with an adequate or

effective remedy. See Pack v. Yusuff, 218 F.3d 448, 452 (5th

Cir. 2000). Gonzalez cannot prevail in his argument because he

has not shown that (1) his claim is based on a retroactively

applicable Supreme Court decision which establishes that he may

have been convicted of a nonexistent offense, and (2) his claim

was foreclosed by circuit law at the time when the claim should

have been raised in his trial, appeal, or first 28 U.S.C. § 2255

motion. Henderson v. Haro, 282 F.3d 862, 863 (5th Cir. 2002).

The district court’s dismissal of Gonzalez’s 28 U.S.C. § 2241

application is AFFIRMED.

AFFIRMED.