Kennedy v. Herrera

61 F. App'x 467

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2003
• Docket: No. 02-55784; D.C. No. CV-01-07287-MMM
• Status: Published

Opinion

MEMORANDUM

**

Thomas Ray Kennedy, III appeals pro se the district court’s dismissal of his 28 U.S.C. § 2241 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), we affirm.

Kennedy seeks to raise a claim under Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). He contends that he may do this via § 2241 because he has already filed one 28 U.S.C. § 2255 motion, and he cannot raise a Richardson claim in a successive § 2255 motion. However, a federal prisoner seeking to challenge his conviction generally must do so by way of a § 2255 motion filed in the sentencing court. See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). Kennedy has failed to demonstrate that § 2255 is “inadequate or ineffective” to test the legality of his detention due to either the restrictions on the filing of second or successive motions, id., or his actual innocence, id. at 954 (declining to decide whether federal prisoners who are actually innocent may resort to § 2241 when relief is not available under § 2255 because the petitioner had not shown actual innocence) (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). The district court therefore properly dismissed Kennedy’s petition. See id. at 956.¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We do not address Kennedy’s Suspension Clause argument because it is not included in the certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).