Davis v. Wendt , 155 F. App'x 805 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10674
Summary Calendar
TONY ROBERT DAVIS,
Petitioner-Appellant,
versus
K. J. WENDT,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-466-N
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Tony Robert Davis, federal prisoner no. 68917-080, appeals the
dismissal of his 28 U.S.C. § 2241 petition, in which he alleged
that the Government had failed to disclose exculpatory evidence in
securing his conviction on eight counts of conspiracy, wire fraud,
travel and transportation of securities for fraudulent purposes,
and money laundering. See United States v. Davis, 226 F.3d 346,
348 (5th Cir. 2000). Davis argues that the district court erred in
dismissing his petition. This court reviews the district court’s
*
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opinion should not be published and is not precedent except under the limited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.
findings of fact for clear error and issues of law de novo.
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
A petition filed under 28 U.S.C. § 2241 which attacks errors
that occurred at trial or sentencing should be dismissed or
construed as a motion under 28 U.S.C. § 2255. Id.; Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). Davis’s 28 U.S.C. § 2241petition challenged his conviction, rather than attacking the
manner in which his sentence was being executed. Davis has not
shown that the remedy provided under 28 U.S.C. § 2255 is inadequate
or ineffective to test the legality of his detention. See
Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
Further, the district court lacked jurisdiction to construe Davis’s
petition as a successive motion under 28 U.S.C. § 2255. See Hooker
v. Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999). The district
court’s judgment dismissing Davis’s petition is AFFIRMED.
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