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

                                                                            FILED
                                                                         February 2, 2009

                                     No. 08-10351                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


NATHANIEL H. THOMAS

                                                  Petitioner - Appellant
v.

REBECCA TAMEZ

                                                  Respondent - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-633


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Federal prisoner Nathaniel Thomas appeals the district court’s dismissal
of his 28 U.S.C. § 2241 petition, in which he argued that in violation of the
constitutional protections against double jeopardy he was convicted of conspiracy
to possess cocaine base, possession with intent to distribute and distribution of
cocaine base, and possession with intent to distribute and distribution of cocaine
base within a thousand feet of a school. Thomas has previously appealed his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 08-10351

convictions, which we affirmed. He has also filed two 28 U.S.C. § 2255 motions
in the Eastern District of Texas, where he was convicted and sentenced, which
that court has denied. Thomas then filed the instant § 2241 petition in the
Northern District of Texas, the district where he is in custody. We review the
district court’s dismissal of Thomas’ § 2241 petition de novo,1 and conclude that
the district court was correct in dismissing the petition for lack of jurisdiction.
      A § 2241 petition is typically used to challenge the execution of a prisoner’s
sentence and is properly brought in the district where the petitioner is in
custody.2 Section 2255, on the other hand, provides the means of collaterally
attacking a federal conviction and sentence and must be brought in the court
that sentenced the petitioner.3 Here, after unsuccessful § 2255 motions in the
Eastern of District of Texas—the court where he was sentenced—Thomas
attempts to attack his conviction using a § 2241 petition in the Northern District
of Texas—the district where he is in custody. Under the general rule, the
district court lacked jurisdiction to hear this challenge.
      However, “§ 2241 may be utilized by a federal prisoner to challenge the
legality of his or her conviction or sentence if he or she can satisfy the mandates
of the so-called § 2255 ‘savings clause.’”4 The savings clause—which asks
whether “the remedy by [§ 2255] motion is inadequate or ineffective”5—requires
a petitioner to show that his claim is “based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense” and that his claim was “foreclosed by circuit


      1
          See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
      2
          Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003).
      3
          Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
      4
          Reyes-Requena v. U.S., 243 F.3d 893, 901 (5th Cir. 2001).
      5
          28 U.S.C. § 2255.

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                                       No. 08-10351

law at the time when the claim should have been raised in the petitioner’s trial,
appeal, or first § 2255 motion.”6 Thomas cannot make this showing because the
Supreme Court case on which he relies, Rutledge v. United States,7 was decided
before he was tried and should have been raised in his earlier appeal and § 2255
motions. That a petitioner would face a successive petition bar under § 2255
does not establish that section’s remedy as “inadequate or ineffective.”8
Accordingly, the district court was without jurisdiction to consider the petition.
      Thomas further argues that the district court abused its discretion in
denying his FED. R. CIV. P 59(e) motion because he alleges he never received a
copy of the magistrate’s report and had no opportunity to object to its findings.
The motion pointed out a clerical error which the district court corrected. It did
not disclose Thomas’ objections to the report. The district court also found that
the magistrate’s report had been mailed to Thomas and had not been returned.
A district court does not abuse its discretion by adopting a magistrate’s report
before its receipt of timely-filed objections,9 and Thomas failed to state his
objections when he had the opportunity.                The district court’s judgment
dismissing Thomas’ petition for lack of jurisdiction is AFFIRMED.




      6
          Reyes-Requena, 243 F.3d at 904.
      7
          517 U.S. 292 (1996).
      8
          Jeffers, 253 F.3d at 830.
      9
          See Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 646 (5th Cir. 1994).

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