                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 07 2010

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 ERIC LAMAR FALLS,                                No. 07-55828

               Petitioner - Appellant,            D.C. No. CV-05-08005-AHS

   v.
                                                  MEMORANDUM *
 DENNIS SMITH, Warden,

               Respondent - Appellee.



                     Appeal from the United States District Court
                         for the Central District of California
                    Alicemarie H. Stotler, District Judge, Presiding

                           Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Federal prisoner Eric Lamar Falls appeals pro se from the district court’s

judgment dismissing his 28 U.S.C. § 2241 habeas petition challenging the legality

of his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

AH/Research
       Falls contends that 28 U.S.C. § 2255 is an inadequate or ineffective means

for raising his claim, entitling him to pursue his claim under 28 U.S.C. § 2241.

The district court correctly determined that Falls failed to demonstrate that 28

U.S.C. § 2255 is “inadequate or ineffective” to test the legality of his detention.

See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (stating general rule that

the unavailability of a second or successive petition does not itself make section

2255 inadequate or ineffective). Further, Falls has failed to demonstrate “actual

innocence.” See id. at 954.

       Accordingly, the district court properly dismissed Falls’ petition for lack of

jurisdiction. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per curiam)

(rejecting the use of § 2241 as substitute for a dismissed § 2255 motion).

       AFFIRMED.




AH/Research                                                                     07-55828
