     Case: 09-10690     Document: 00511056600          Page: 1    Date Filed: 03/19/2010




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

                                                  FILED
                                                                           March 19, 2010
                                     No. 09-10690
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DIEGO EMILIO MORENO-GOMEZ,

                                                   Petitioner-Appellant

v.

DOUGLAS HALL, Warden Eden Detention Center,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:09-CV-59


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Diego Emilio Moreno-Gomez (Moreno), federal prisoner # 14193-069,
appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging
his conviction for possession with intent to distribute five kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States
and conspiracy to possess with intent to distribute five kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States.
Moreno argues that the district court erred in determining that he was unable

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10690    Document: 00511056600 Page: 2         Date Filed: 03/19/2010
                                 No. 09-10690

to challenge his federal conviction under § 2241 and dismissing his petition for
want of jurisdiction.
      “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). There is no merit to Moreno’s
assertions that his claims of jurisdictional defect or actual innocence are
independently cognizable under § 2241. See § 2255(a); Pack, 218 F.3d at 452.
Moreno has also not shown that his claim of actual innocence provides an
exception to the requirement that a petitioner first satisfy the savings clause of
§ 2255(e) in order to challenge his conviction and sentence in a § 2241 petition.
      Accordingly, Moreno must meet the requirements of the savings clause of
§ 2255(e) to raise his claims under § 2241. See Kinder v. Purdy, 222 F.3d 209,
212 (5th Cir. 2000). Moreno bears the burden of demonstrating that “the remedy
by motion [under § 2255] is inadequate or ineffective to test the legality of his
detention.” § 2255(e); see also Pack, 218 F.3d at 452. Moreno must demonstrate
that he was convicted of a nonexistent offense by virtue of a recently-decided,
retroactively applicable Supreme Court decision. Cf. Reyes-Requena v. United
States, 243 F.3d 893, 904-06 (5th Cir. 2001). As he has not done so, the district
court did not err in concluding that Moreno could not bring his claims under
§ 2241. See Pack, 218 F.3d at 453.
      The district court also did not err in dismissing Moreno’s petition for want
of jurisdiction. Although Moreno’s claims could have been raised in a § 2255
motion, see id. at 451, the district court lacked jurisdiction to consider his claims
under § 2255 as it was not the court that sentenced him. See id.
      Moreno nonetheless argues that the district court should have transferred
his petition to a district in which jurisdiction would have been proper. Moreno
has not suggested why the interest of justice would be served by transfer instead
of dismissal. See 28 U.S.C. § 1631.



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                                No. 09-10690

      Moreno also argues that the district court failed to give him advance notice
that it intended to construe his § 2241 petition as a § 2255 motion. Even if the
district court construed his § 2241 petition as a § 2255 motion without providing
advance notice, there is no reversible error because Moreno’s pleading will not
be considered a § 2255 motion for purposes of the second or successive
restrictions of § 2255(h). See Castro v. United States, 540 U.S. 375, 383 (2003).
      The judgment of the district court is AFFIRMED.




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