     Case: 11-11162     Document: 00511863085         Page: 1     Date Filed: 05/22/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 22, 2012
                                     No. 11-11162
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ANTHONY DEAN SINGLETON,

                                                  Petitioner - Appellant

v.

ERIC HOLDER, US Attorney General; KAREN EDENFIELD, Warden,

                                                  Respondents - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-181


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Anthony Dean Singleton, federal prisoner # 03482-025, proceeding pro se
and in forma pauperis, challenges the dismissal, for lack of jurisdiction, of his 28
U.S.C. § 2241 petition. The dismissal is reviewed de novo. Kinder v. Purdy, 222
F.3d 209, 212 (5th Cir. 2000).
        Singleton was convicted in 1996 in the District Court for the Southern
District of Illinois for possession with intent to distribute, and conspiracy to
distribute, cocaine base. His conviction was affirmed. United States v. Singleton,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-11162

125 F.3d 1097 (7th Cir. 1997). He subsequently moved to vacate his sentence
pursuant to 28 U.S.C. § 2255. (The record lacks information regarding the
disposition of that proceeding.)
      Singleton filed the § 2241 petition at issue in the Northern District of
Texas, where he is currently incarcerated. He maintained, inter alia, that the
district court in Illinois had lacked jurisdiction over the charges for which he had
been convicted. The district court under review sua sponte dismissed the § 2241
petition for lack of jurisdiction, concluding: Singleton sought to raise claims
challenging the validity of his criminal conviction that were more properly raised
in a § 2255 motion; because Singleton had been sentenced in the Southern
District of Illinois, the Northern District of Texas lacked jurisdiction over
Singleton’s claims or to construe his § 2241 petition as a § 2255 motion; and
Singleton had not shown that the § 2255 remedies were inadequate or ineffective
or that he had received permission from the Court of Appeals for the Seventh
Circuit to file a successive § 2255 motion.
      Singleton contends that the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) unconstitutionally suspends the writ of habeas corpus and,
thus, his claim that his conviction violates the Tenth Amendment is cognizable
in a § 2241 petition.     This suspension-of-the-writ contention, however, is
meritless. Felker v. Turpin, 518 U.S. 651, 663-65 (1996).
      Singleton also maintains the convicting court lacked subject matter
jurisdiction because the section of the Controlled Substances Act under which
he was convicted violates the Tenth Amendment. Singleton’s lack-of-jurisdiction
assertion implies the invalidity of his conviction and sentence. A § 2241 petition
that challenges errors at trial or sentencing is properly construed as a § 2255
motion. Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001).
      Under § 2255’s “savings clause”, however, if a prisoner can demonstrate
that the § 2255 remedy would be “inadequate or ineffective to test the legality
of [the prisoner’s] detention”, he may be permitted to pursue a claim under

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                                   No. 11-11162

§ 2241. Id. at 901. The petitioner bears the burden of demonstrating that § 2255
relief would be ineffective or inadequate. Jeffers v. Chandler, 253 F.3d 827, 830
(5th Cir. 2001). A prior unsuccessful § 2255 motion, or the inability to meet the
requirements for filing a successive § 2255 motion, does not make the § 2255
remedy inadequate. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). Rather,
“the savings clause of § 2255 applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which establishes 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, 243 F.3d at 904.
      To establish that the § 2255 “savings clause” applies, Singleton relies on
Bond v. United States, 131 S. Ct. 2355, 2366-67 (2011). Bond, a direct criminal
appeal, has not been found, however, to apply retroactively to cases on collateral
review. Moreover, Bond’s holding, which expressed no view on the merits of
defendant’s Tenth Amendment claim, id. at 2367, does not establish that
Singleton may have been convicted of a nonexistent offense. Reyes-Requena, 243
F.3d at 904. As such, Singleton cannot show that the § 2255 remedy was
inadequate.
      AFFIRMED.




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