Pennant v. USA ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40481
Summary Calendar
ROY PENNANT,
Petitioner-Appellant,
versus
UNITED STATE OF AMERICA;
ERNEST V. CHANDLER, Warden;
JOHN ASHCROFT, U.S. Attorney General,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-86
--------------------
January 3, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Roy Pennant, federal inmate #16201-018, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition. Pennant
contends that pursuant to Willis v. United States, 438 F.2d 923
(5th Cir. 1971), he was entitled to credit against his federal
sentence for time that he spent in state custody subject to a
federal detainer until the he was transferred to federal custody.
Pennant challenges the district court’s determination that 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that this opinion should not be published and is not precedent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. 01-40481
-2-
claim concerning the Government’s delay in indicting him should
have been brought in a 28 U.S.C. § 2255 motion.
Section 2255, 28 U.S.C., is the primary means of
collaterally attacking a federal sentence. Cox v. Warden, Fed.
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Relief
under 28 U.S.C. § 2255 “is warranted for any error that `occurred
at or prior to sentencing.’” Id. A federal prisoner may seek
relief under 28 U.S.C. § 2241 instead of 28 U.S.C. § 2255 if he
can show that the remedies under 28 U.S.C. § 2255 are inadequate
or ineffective to test the legality of his detention. See id.
The petitioner bears the burden of affirmatively showing that the
28 U.S.C. § 2255 remedy is inadequate or ineffective. See id.
Pennant’s preindictment delay allegation has bearing on the
validity of Pennant’s conviction and should have been brought
under 28 U.S.C. § 2255. See id. Pennant has not shown that the
28 U.S.C. § 2255 remedy is inadequate or ineffective. See
Solsona v. Warden, 821 F.2d 1129, 1132 (5th Cir. 1987)(28 U.S.C.
§ 2255 motion must be filed in district court that imposed
sentence).
Pennant has abandoned his contention that the sentencing
court believed that it lacked the authority to grant him credit
against his federal sentence by failing to assert the issue in
this court. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993).
Pennant’s contention that he was entitled to credit against
his federal sentence for time that he spent in state custody
subject to a federal detainer until the time that he was
No. 01-40481
-3-
transferred to federal custody is without merit because Pennant
obtained credit against his state sentence for that time.
See United States v. Dovalina, 711 F.2d 737, 740 (5th Cir. 1983)
(if petitioner’s release on state bail while state charges were
pending was prevented solely because of federal detainer, he
would be entitled to credit toward his federal sentence, provided
he was not given credit on state sentence for that time); United
States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992). The
judgment of the district court is AFFIRMED.