     Case: 13-10376       Document: 00512402107         Page: 1     Date Filed: 10/09/2013




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

                                                                            FILED
                                                                          October 9, 2013
                                     No. 13-10376
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TRACY MOOREHEAD,

                                                  Petitioner - Appellant

v.

WARDEN RONALD W. CHANDLER,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-81


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis on appeal, Tracy Moorehead,
federal prisoner #41233-424, was convicted in the Northern District of Iowa of
conspiracy to distribute cocaine base and was sentenced to 240 months in prison.
He is incarcerated at a federal facility in Fort Worth, Texas, and filed a 28
U.S.C. § 2241 petition for habeas relief in the Northern District of Texas, which
the district court dismissed.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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      The district court’s factual findings are reviewed for clear error; its legal
conclusions, de novo. E.g., Padilla v. United States, 416 F.3d 424, 425 (5th Cir.
2005). A § 2241 petition “attacks the manner in which a sentence is carried out
or the prison authorities’ determination of its duration, and must be filed in the
same district where the prisoner is incarcerated”. Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000). By contrast, a 28 U.S.C. § 2255 motion is the primary
method of collaterally attacking a federal sentence; relief “is warranted for errors
cognizable on collateral review that occurred at or prior to sentencing”. Id.
(internal quotation marks and citation omitted). A § 2255 motion must be filed
in the sentencing court. Id.
      “A § 2241 petition which attacks errors that occur at trial or sentencing is
properly construed under § 2255.” Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th
Cir. 2000). Even then, a court can only construe such a petition under § 2255 if
it could have properly heard a § 2255 motion in the first instance, i.e., if that
court is the sentencing court. See Ojo v. I.N.S., 106 F.3d 680, 683 (5th Cir. 1997)
(“Although a § 2241 petition attacking matters within the province of § 2255
should be construed as a § 2255 petition, a court without jurisdiction to hear a
§ 2255 petition can hardly be expected to do that.”) (citation omitted).
      Moorehead asserts error in the determination of his sentence by the
sentencing court. He does not challenge the manner in which his sentence is
being carried out or the determination by prison authorities of its duration. The
district court committed no error in concluding Moorehead should have filed his
claims as part of a § 2255 motion in a court with the authority to hear that
motion, namely the Northern District of Iowa.
      Section 2255 also contains a “savings clause”, which permits courts to
entertain a § 2241 petition attacking custody imposed by a federally imposed
sentence when the remedy under § 2255 is ineffective or inadequate. See 28
U.S.C. § 2255(e); see, e.g., Padilla, 416 F.3d at 426. “The petitioner bears the
burden of demonstrating that the section 2255 remedy is inadequate or

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                                  No. 13-10376

ineffective.” Pack, 218 F.3d at 452. Our court has clarified the circumstances
where a petitioner meets that burden, holding the savings clause “applies to a
claim of actual innocence ‘(i) that is based on a retroactively applicable Supreme
Court decision which establishes that the petitioner 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 the petitioner’s trial, appeal, or first § 2255
motion’”. Padilla, 416 F.3d at 426 (quoting Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001)). “Only the custodial court has the jurisdiction to
determine whether a petitioner’s claims are properly brought under § 2241 via
the savings clause of § 2255.” Id. (citation omitted).
      Moorehead filed a motion under § 2255 in the Northern District of Iowa
in November 2010, seeking relief for ineffective assistance of counsel. That
motion was denied in February 2013, several weeks after Moorehead filed the
§ 2241 at issue here. “This Court and other Courts of Appeals have consistently
noted that ‘a prior unsuccessful [section] 2255 motion is insufficient, in and of
itself, to show the inadequacy or ineffectiveness of the remedy’.” Pack, 218 F.3d
at 452 (quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)).
      Although Moorehead claims he is “actually innocent of his sente[n]ce”, he
does not offer evidence or explain his reasoning for the assertion. Moorehead
neither alleges available remedies under § 2255 are inadequate or ineffective,
nor makes a claim based on a retroactively applicable Supreme Court decision
rendering his offense nonexistent.      The district court properly refused to
entertain the § 2241 petition under the savings clause.
      AFFIRMED.




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