     Case: 11-11156     Document: 00511822077         Page: 1     Date Filed: 04/16/2012




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

                                                                            FILED
                                                                           April 16, 2012
                                     No. 11-11156
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

SETH AMOS NELSON,

                                                  Petitioner-Appellant

v.

ERIC H. HOLDER, JR., U.S. 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-139


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant Seth Amos Nelson, federal prisoner # 06958-046,
appeals the district court’s dismissal, for lack of jurisdiction, of his 28 U.S.C. §
2241 petition. In the petition, Nelson challenged his convictions in the District
of Montana of conspiring to manufacture methamphetamine and being a felon
in possession of a firearm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-11156      Document: 00511822077    Page: 2    Date Filed: 04/16/2012

                                  No. 11-11156

      Nelson asserts that the district court had jurisdiction over his petition
because both he and his custodian, the warden of his prison facility, are within
the Northern District of Texas. He contends that 28 U.S.C. § 2255 is inadequate
or ineffective to test the legality of his detention. Nelson argues that the
dismissal of his petition pursuant to § 2255 impermissibly suspends the writ of
habeas corpus. He also briefs the merits of his claim that his drug conspiracy
conviction was unconstitutional because the Controlled Substances Act violates
the Tenth Amendment and exceeds the federal government’s power under
Commerce Clause. We review a district court’s dismissal of a § 2241 petition de
novo. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000).
      A § 2241 petition and a § 2255 motion “are distinct mechanisms for
seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
Section 2255 is the primary mechanism for collaterally attacking a federal
sentence, and a § 2255 motion must be filed in the sentencing court. Id. Section
2241 is the proper procedural vehicle for challenging the manner in which a
sentence is executed, and a § 2241 petition must be filed in the district of
incarceration. Id. “A section 2241 petition that seeks to challenge the validity
of a federal sentence must either be dismissed or construed as a section 2255
motion.” Id. at 452.
      As the claims raised by Nelson in his § 2241-denominated petition
attacked the validity of his convictions and sentences in Montana, the district
court in Texas did not err in its determination that the claims would be properly
brought in a § 2255 motion. See Pack, 218 F.3d at 451. As Nelson was
sentenced in the district court in Montana, the district court in Texas correctly
determined that it lacked jurisdiction to consider his petition as a § 2255 motion.
See Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997) (“Because all of the errors [the
prisoner] alleges [occurred before or during sentencing], they must be addressed
in a § 2255 petition, and the only court with jurisdiction to hear that is the court
that sentenced him.”).

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                                 No. 11-11156

      A prisoner may attack the validity of his conviction in a § 2241 petition
only if he meets the requirements of the savings clause of § 2255(e). Kinder, 222
F.3d at 212. It is the petitioner’s burden to show affirmatively that the remedy
under § 2255 would be “inadequate or ineffective to test the legality of his
detention.” Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
The petitioner must establish that his claim (1) “is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense” and (2) “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.” Id. at 904. Nelson has failed to make the
required showing.
      Nelson’s argument that the dismissal of his § 2241-denominated petition
impermissibly suspends the writ of habeas corpus is meritless. We have held
that the restrictions on obtaining relief pursuant to § 2241 and the savings
clause of § 2255 do not violate the Suspension Clause. See Wesson v. United
States Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002);
Reyes-Requena, 243 F.3d at 901 n.19.
      AFFIRMED.




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