     Case: 09-10736     Document: 00511115946          Page: 1    Date Filed: 05/19/2010




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

                                                  FILED
                                                                            May 19, 2010
                                     No. 09-10736
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROGELIO HERRERA-ISAIS,

                                                   Petitioner-Appellant

v.

NFN JUSTICE, Warden,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:09-CV-104


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Rogelio Herrera-Isais (Herrera), federal prisoner # 64049-079, appeals the
dismissal of his 28 U.S.C. § 2241 petition by the district court for the Northern
District of Texas. In his petition, Herrera argued that his 262-month sentence
for conspiring to possess with intent to deliver marijuana and cocaine imposed
in the Southern District of Texas was unconstitutional pursuant to Apprendi v.
New Jersey, 530 U.S. 466 (2000). The district court observed that Herrera’s
claim should have been brought in a 28 U.S.C. § 2255 motion in the Southern

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10736    Document: 00511115946 Page: 2         Date Filed: 05/19/2010
                                 No. 09-10736

District of Texas and dismissed the § 2241 petition without prejudice for lack of
jurisdiction.
      Because Herrera is proceeding under § 2241, he is not required to obtain
a COA to pursue his appeal. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.
2001).   In reviewing the denial of habeas relief, the district court’s factual
findings are reviewed for clear error, and its legal conclusions are reviewed de
novo. Id.
      “A section 2241 petition on behalf of a sentenced prisoner attacks the
manner in which a sentence is carried out or the prison authorities'
determination of its duration . . . .” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000). By contrast, § 2255 is the appropriate vehicle to attack the legality of the
prisoner’s sentence. Id. A § 2241 petition cannot substitute for a § 2255 motion.
Id. at 452. A § 2241 petition must be filed in the district where the prisoner is
incarcerated, while a § 2255 motion “must be filed in the sentencing court.” Id.
at 451. Despite these principles, 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).
      Herrera does not argue that his § 2241 petition qualified for review under
the savings clause of § 2255, nor does he contend that the district court had
jurisdiction to construe his petition as a § 2255 motion. Although he asserts that
he made allegations in his § 2241 petition regarding the manner in which his
sentence has been executed, he did not, in fact, do so. We decline to consider
these allegations for the first time on appeal. See Yohey v. Collins, 985 F.2d 222,
225, 227 (5th Cir. 1993). The district court did not err by dismissing his § 2241
petition for lack of jurisdiction. See Pack, 218 F.3d at 451-53.
      AFFIRMED.



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