Schreiber v. Bureau of Prisons ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60020
Summary Calendar
HARRY SCHREIBER,
Petitioner-Appellant,
versus
BUREAU OF PRISONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:00-CV-290-BrS
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August 30, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Harry Schreiber, federal inmate #40454-004, appeals from the
district court’s dismissal of his 28 U.S.C. § 2241 petition for
want of jurisdiction. He also seeks a temporary restraining order
and/or preliminary injunction against the respondent. IT IS
ORDERED that the request for injunctive relief is DENIED. From our
independent review, we conclude that the district court was correct
in dismissing the petition for want of jurisdiction.
“A section 2241 petition on behalf of a sentenced prisoner
attacks the manner in which a sentence is carried out or the prison
*
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that this opinion should not be published and is not precedent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. 01-60020
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authorities’ determination of its duration, and must be filed in
the same district where the prisoner is incarcerated.” Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). “Section 2255 is the
primary means of collaterally attacking a federal sentence.”
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). A § 2255
motion is properly filed in the sentencing court. Kinder, 222 F.3d
at 212. “A § 2241 petition which attacks errors that occur at
trial or sentencing is properly construed under § 2255.” Tolliver,
211 F.3d at 877-78.
The district court did not err in concluding that it lacked
jurisdiction over Schreiber’s sentencing claims. With one
exception, Schreiber’s claims concern the validity of his sentence
or his convictions. See Tolliver, 211 F.3d at 877-78. The court
properly dismissed these claims for want of jurisdiction. See
Kinder, 222 F.3d at 212. The district court did not construe
Schreiber’s petition as containing a claim arising from the Bureau
of Prison program that takes funds from an inmate’s account in
order to satisfy an order of restitution. Insofar as Schreiber’s
petition raised such an issue and to the extent that the claim
sounds in habeas and is not inextricably intertwined with
Schreiber’s § 2255 claims, the district court would lack
jurisdiction to consider the matter because Schreiber has not shown
that he has exhausted available administrative remedies. See
United States v. Gabor, 905 F.2d 76, 77-78 (5th Cir. 1990).
Schreiber argues that his 28 U.S.C. § 2255 claims are properly
raised in a 28 U.S.C. § 2241 petition through the savings clause of
28 U.S.C. § 2255. A 28 U.S.C. § 2241 petition cannot substitute
No. 01-60020
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for a 28 U.S.C. § 2255 motion, and Schreiber carries the burden to
demonstrate the inadequacy or ineffectiveness of a 28 U.S.C. § 2255
motion. Pack, 218 at 452. Schreiber asserts that a 28 U.S.C. §
2255 motion is inadequate in this case because the 28 U.S.C. § 2255
procedure cannot be used to challenge an order of restitution.
Such an order does not relate to custody, and therefore, the in-
custody requirement is not met. Schreiber’s claims, however, are
not directed solely to the order of restitution. He is attempting
to challenge the length of his sentence and the validity of his
convictions based on purported errors at sentencing and purported
deficiencies in the indictment.
The district court did not err in dismissing Schreiber’s 28
U.S.C. § 2241 petition for want of jurisdiction. See Pack, 218
F.3d at 451.
AFFIRMED.