     Case: 11-11149     Document: 00511863195         Page: 1     Date Filed: 05/22/2012




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

                                                                            FILED
                                                                           May 22, 2012
                                     No. 11-11149
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

AUZIO HEWLETT,

                                                  Petitioner-Appellant

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL; KAREN EDENFIELD,
Warden,

                                                  Respondents-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-119


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Auzio Hewlett, federal prisoner # 29801-044, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. In the petition,
Hewlett challenged his conviction in the Eastern District of Wisconsin for
conspiracy to distribute and to possess with the intent to distribute 50 grams or
more of cocaine base and five kilograms or more of cocaine.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-11149

      Hewlett asserts that the district court had jurisdiction over his petition
because both he and his custodian, the warden of his prison facility, are within
the Northern District of Texas. He contends that 28 U.S.C. § 2255 is inadequate
or ineffective to test the legality of his detention. Hewlett argues that the
dismissal of his § 2241 petition impermissibly suspends the writ of habeas
corpus. He also briefs the merits of his claim that his drug conspiracy conviction
was unconstitutional because the Controlled Substances Act violates the Tenth
Amendment and exceeds the federal government’s power under the Commerce
Clause. We review a district court’s dismissal of a § 2241 petition de novo.
Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000).
      A § 2241 petition and a § 2255 motion “are distinct mechanisms for
seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
Section 2255 is the primary mechanism for collaterally attacking a federal
sentence, and a § 2255 motion must be filed in the sentencing court. Id. Section
2241 is the proper procedural vehicle for challenging the manner in which a
sentence is executed, and a § 2241 petition must be filed in the district of
incarceration. Id. “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.” Id. at 452.
      Because the claims raised by Hewlett in his § 2241 petition attacked the
validity of his Wisconsin conviction, the district court did not err in its
determination that the claims would be properly brought in a § 2255 motion. See
Pack, 218 F.3d at 451. As Hewlett was sentenced in Wisconsin, the district court
correctly determined that it lacked jurisdiction to consider his petition as a
§ 2255 motion. See Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997).
      A prisoner can attack the validity of his conviction in a § 2241 petition only
if he can meet the requirements of the savings clause of § 2255(e). Kinder, 222
F.3d at 212. It is the petitioner’s burden to affirmatively show that the remedy
under § 2255 would be inadequate or ineffective to test the legality of his

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                                 No. 11-11149

detention. Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
The petitioner must establish that his claim (1) “is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense” and (2) “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.” Id. at 904. Hewlett has failed to make the
required showing.
      To the extent that Hewlett argues that the dismissal of his § 2241 petition
impermissibly suspends the writ of habeas corpus, his contention lacks merit.
We have held that the restrictions on obtaining relief pursuant to § 2241 and the
savings clause of § 2255 do not violate the Suspension Clause. See Wesson v.
United States Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002);
Reyes-Requena, 243 F.3d at 901 n.19.
      AFFIRMED




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