     Case: 10-30942 Document: 00511454552 Page: 1 Date Filed: 04/22/2011




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

                                                 FILED
                                                                            April 22, 2011
                                     No. 10-30942
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ANTHONY DEWAYNE PARKER,

                                                   Petitioner-Appellant

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:09-CV-2148


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Anthony Dewayne Parker, federal prisoner # 13620-076, is serving a 327-
month sentence for being a felon in possession of a firearm. He appeals the
district court’s dismissal of a petition that he filed pursuant to 28 U.S.C. § 2241.
He argues that the district court should have interpreted the pleading as arising
under 18 U.S.C. § 3569 because he alleged that he was being imprisoned for the
nonpayment of a fine. Parker also contends that the district court failed to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30942

address the merits of his constitutional claim and to conduct an evidentiary
hearing to examine the basis for his claim.
      The record supports that the district court reasonably could have
construed Parker’s pleading as arising under § 2241. Parker requested a habeas
petition from the court and filed a petition pursuant to § 2241 that ostensibly
raised claims regarding sentencing that are cognizable in a habeas petition. See
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (noting that federal habeas
petitions are used to challenge the imposition or execution of a sentence). The
court could not construe Parker’s sentencing claims as arising under 28 U.S.C.
§ 2255 because he had previously filed § 2255 motions challenging his instant
conviction. See Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999). To the
extent that the court concluded that the petition did not qualify for the “savings
clause” of § 2255, Parker has effectively waived any challenge to that
determination by not addressing it. See Brinkmann v. Dallas County. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Moreover, to the extent that
the petition was dismissed for lack of jurisdiction, the district court was not
required to address the merits of Parker’s claims or to conduct an evidentiary
hearing regarding the claims.
      Parker’s assertion that the court should have construed his petition as
arising under § 3569 lacks merit. Section 3569 established a procedure whereby
an indigent prisoner could obtain release from imprisonment if he were being
held solely for the non-payment of a fine. United States v. Estrada, 878 F.2d
823, 824 (5th Cir. 1989). Section 3569 was repealed in 1984, effective November
1, 1987. See 18 U.S.C.A. Pt. II, Ch. 227, preceding § 3551 (West 2010).
      Parker is not imprisoned for the non-payment of a fine or any other debt.
Parker also was convicted in 2001, i.e., after the repeal of § 3569 took effect.
Accordingly, if Parker’s petition was a motion under § 3569, it would have been
subject to dismissal by the district court as an unauthorized motion over which
the court lacked jurisdiction. See United States v. Early, 27 F.3d 140, 141 (5th

                                        2
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                                 No. 10-30942

Cir. 1994). The district court could not construe the pleading as something over
which it lacked jurisdiction. See Hooker, 187 F.3d at 681-82.
      AFFIRMED




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