     Case: 10-11200     Document: 00511538455         Page: 1     Date Filed: 07/13/2011




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

                                                                            FILED
                                                                            July 13, 2011
                                     No. 10-11200
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

AMY NEWMAN,

                                                  Petitioner-Appellant

v.

JOE KEFFER, Warden, FMC-Carswell,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-797


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Amy Newman, federal prisoner # 41712-074, appeals the district court’s
dismissal of her 28 U.S.C. § 2241 petition for lack of jurisdiction. She argues
that the district court erred in denying her claim for lack of jurisdiction. She
asserts that, in view of United States v. Almany, 598 F.3d 238 (6th Cir. 2010),
she should not have received two mandatory minimum sentences for her
convictions under 28 U.S.C. § 841 and 18 U.S.C. § 924(c). If her brief is liberally
construed, Newman contends that her claim may be raised under the savings

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11200    Document: 00511538455       Page: 2    Date Filed: 07/13/2011

                                   No. 10-11200

clause contained in 28 U.S.C. § 2255; she asserts that her claim cannot be raised
in a successive § 2255 motion because it is not based on newly discovered
evidence or a new rule of constitutional law and, therefore, a § 2255 motion
would be inadequate.
      Because Newman is challenging the legality of her sentence, and not the
manner in which her sentence is being executed, the district court did not err in
concluding that her claim arises under § 2255. See Padilla v. United States, 416
F.3d 424, 425-26 (5th Cir. 2005). She has not shown that her claim falls within
§ 2255’s savings clause as she has not demonstrated that (1) her claim “is based
on a retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense”; and (2) her claim
“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.”                See
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Further,
Newman’s inability to meet the requirements for filing a successive § 2255
motion does not make the § 2255 remedy inadequate. See Tolliver v. Dobre, 211
F.3d 876, 878 (5th Cir. 2000).
      Finally, Newman has not shown that the district court erred in
determining that it lacked jurisdiction over a § 2255 motion. Newman was
convicted and sentenced in the Eastern District of Tennessee, but she filed the
instant petition in the Northern District of Texas. Therefore, the district court
did not err in dismissing it for lack of jurisdiction. See § 2255(e); see also Solsona
v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987).
      AFFIRMED.




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