Ortiz-Martinez v. Herrera

44 F. App'x 806

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2002
• Docket: No. 01-57012; D.C. No. CV-01-06374-DT
• Status: Published

Opinion

MEMORANDUM

**

Candido Ortiz-Martinez appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas petition challenging the propriety of his federal conviction and sentence for possession and distribution of cocaine in violation of 21 U.S.C. §§ 846 and 841(a), and using and carrying a firearm in violation of 18 U.S.C. § 924(c). We have jurisdiction pursuant to 28 U.S.C. § 2253. We review the district court’s dismissal of a § 2241 petition de novo, see Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), and we affirm.

Ortiz-Martinez has filed three unsuccessful § 2255 motions in Missouri district court. The first motion was denied on the merits, and the other two were deemed successive motions which the Eighth Circuit Court of Appeals refused to certify. See 28 U.S.C. § 2244. Ortiz-Martinez then filed a § 2241 petition in California district court, the district of his incarceration, contending that Section 2255 was inadequate or ineffective.

Ortiz-Martinez essentially argues that any further Section 2255 motion would be prohibited as successive, therefore, Section 2255 is an inadequate or ineffective remedy as applied to him. However, this court has made clear that “ § 2241 is not available under the inadequate-or-ineffective-remedy escape hatch of § 2255 merely because the court of appeals refuses to certify a second or successive motion under the gatekeeping provisions of § 2555.” Lor-entsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000) (citation omitted). Moreover, § 2255 is not inadequate or ineffective because the sentencing court denied relief on the merits. See Tripati 843 F.2d at 1162. Ortiz-Martinez has failed to carry his burden of showing that a § 2255 motion would be inadequate or ineffective. Accordingly, the district court properly dismissed his petition for habeas corpus without prejudice.

AFFIRMED.

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