     Case: 11-40348     Document: 00511621676         Page: 1     Date Filed: 10/04/2011




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

                                                                            FILED
                                                                          October 4, 2011
                                     No. 11-40348
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DERRICK OLIPHANT,

                                                  Petitioner - Appellant

v.

M. MARTIN, Warden,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CV-822


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Proceeding pro se and in forma pauperis, Derrick Oliphant, federal
prisoner # 14426-078, appeals the dismissal of his 28 U.S.C. § 2241 petition.
Oliphant was convicted in 2008 of conspiracy to possess with intent to distribute
cocaine base. He claims he should not have been prosecuted in federal court and
that his indictment was defective.
        In reviewing denial of habeas relief, questions of law are reviewed de novo.
E.g., Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The primary means

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40348    Document: 00511621676       Page: 2   Date Filed: 10/04/2011

                                   No. 11-40348

of collaterally attacking a federal conviction and sentence is provided by 28
U.S.C. § 2255. E.g., Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2241 generally is used to attack the manner in which a sentence is executed. Id.
Nevertheless, a § 2241 petition attacking a federal conviction or sentence may
be considered if petitioner shows the remedy under § 2255 is “inadequate or
ineffective”. Id. at 878. See also 28 U.S.C. § 2255(e) (“An application for a writ
of habeas corpus . . . shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him, or that
such court has denied him relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the legality of his detention.”)
(“savings clause”). The remedy under § 2255 is inadequate or ineffective when:
(i) a retroactively applicable Supreme Court decision shows petitioner may have
been convicted of a nonexistent offense; and (ii) this claim was foreclosed by law
at the time it should have been raised in petitioner’s trial, appeal, or first § 2255
motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
      The district court dismissed Oliphant’s § 2241 petition because the claims
should have been brought in a § 2255 motion and because the petition did not
meet the requirements for proceeding under the savings clause of § 2255. The
district court did not err.
      AFFIRMED.




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