     Case: 11-41061     Document: 00511931288         Page: 1     Date Filed: 07/24/2012




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

                                                                            FILED
                                                                            July 24, 2012
                                     No. 11-41061
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN WESLEY HARRIS,

                                                  Petitioner-Appellant

v.

JOHN B. FOX,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CV-292


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        John Wesley Harris, federal prisoner # 66693-179, appeals the dismissal
of his 28 U.S.C. § 2241 petition challenging his conviction in the Eastern District
of North Carolina for conspiracy to distribute controlled substances. Currently
incarcerated in the Eastern District of Texas, he argues that his indictment is
fatally flawed, thereby establishing that he is actually innocent and the
convicting court lacked subject matter jurisdiction. Reviewing the district



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41061    Document: 00511931288      Page: 2   Date Filed: 07/24/2012

                                  No. 11-41061

court’s dismissal de novo, Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000), we
affirm.
      Harris’s § 2241 petition challenges trial errors and thus is properly
construed as a 28 U.S.C. § 2255 motion. He may therefore proceed via § 2241
only if he demonstrates that § 2255 relief would be ineffective or inadequate. See
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Harris, however, has not
alleged or established that his claims of actual innocence and lack of subject
matter jurisdiction--predicated on allegations of a fatally defective indictment--
are either based upon a retroactive Supreme Court decision establishing that he
was convicted of a nonexistent offense or were foreclosed by circuit law at the
time of his trial, appeal, or § 2255 motion. See Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). He has therefore shown no error on the part
of the district court in dismissing his petition.
      AFFIRMED.




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