     Case: 11-11145     Document: 00511923510         Page: 1     Date Filed: 07/17/2012




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

                                                                            FILED
                                                                            July 17, 2012
                                     No. 11-11145
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOSEPH E. MARSHALL,

                                                  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-189


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Joseph E. Marshall, federal prisoner # 12356-032, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition challenging his conviction for
conspiracy to possess oxycodone with the intent to distribute. Marshall argues
that the district court erred in dismissing his petition because (1) requiring him
to file a § 2255 motion would improperly suspend his constitutional right to a
writ of habeas corpus, (2) any remedy under § 2255 would be inadequate to test


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-11145

the legality of his detention because his motion would be barred by the statute
of limitations, and (3) pursuant to § 2241(b), the district should have transferred
his petition to a court with proper jurisdiction.
      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 section 2241 petition that seeks
to challenge the validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.” Pack v. Yusuff, , 218 F.3d 448, 452 (5th Cir.
2000). A § 2241 petition that attacks custody resulting from a federally imposed
sentence may be entertained under the savings clause of § 2255 if the petitioner
establishes that the remedy provided under § 2255 is “inadequate or ineffective”
to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir.
2000).
      Marshall’s assertion that the dismissal of his § 2241 petition would result
in a miscarriage of justice by suspending his constitutional right to seek a writ
of habeas corpus is conclusional at best and is not sufficient to make the
necessary affirmative showing for relief under the savings clause. See Koch v.
Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (stating that conclusional allegations
fail to establish a valid claim). In any event, we have previously rejected a
similar suspension clause argument. See Wesson v. United States Penitentiary
Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002) (concluding that § 2255’s
savings clause does not violate the Suspension Clause).
      To demonstrate that the remedy provided under § 2255 is inadequate or
ineffective, Marshall must establish that his claim is “(i) . . . based on a
retroactively applicable Supreme Court decision which establishes that
[he] . . . 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
[his] . . . trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). Marshall’s assertions that Kentucky is not a



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                                 No. 11-11145

state and that his indictment was invalid do not meet this standard. See Padilla
v. United States, 416 F.3d 424, 427 (5th Cir. 2005).
      Equally unavailing is Marshall’s assertion that the district court should
have transferred his petition pursuant to § 2241(b). Section 2241(b) simply
states that courts “may” transfer a habeas application to a court of appropriate
jurisdiction; however, there is no mandate that courts do so. Moreover, Marshall
does not demonstrate that a transfer instead of a dismissal would have served
the best interests of justice. See 28 U.S.C. § 1631. Accordingly, the district
court’s judgment is AFFIRMED.




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