Garcia v. Fleming , 70 F. App'x 792 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 6, 2003
Charles R. Fulbruge III
Clerk
No. 03-10360
Summary Calendar
JOSE GARCIA,
Petitioner-Appellant,
versus
L. E. FLEMING, Warden, FMC-Fort Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-00173-Y
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Before DUHÉ, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:1
Jose Garcia, federal prisoner No. 35533-054, appeals the
dismissal of his 28 U.S.C. § 2241 petition. In 1995, Garcia was
convicted of conspiracy and controlled substance offenses in the
United States District Court for the Southern District of New York,
and he is currently incarcerated in the Northern District of Texas.
Garcia has unsuccessfully challenged his sentence under 28 U.S.C.
§ 2255.
1
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that this opinion should not be published and is not precedent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.
Garcia argues that he is actually innocent of conspiracy to
import cocaine because the jury acquitted all of his codefendants
of that charge. Because Garcia’s argument alleges errors at his
trial, it must be construed as a § 2255 motion unless he
establishes that his claims fall under the savings clause of
§ 2255. Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). Garcia
has not attempted to make that showing. See Wesson v. U.S.
Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002), cert.
denied, 123 S. Ct. 1374 (2003). As claims arising under § 2255
must be heard in the sentencing court, the District Court for the
Northern District of Texas lacked jurisdiction to construe Garcia’s
pleadings as a § 2255 motion. See § 2255.
AFFIRMED.
2