Anderson v. Bureau of Prisons , 200 F. App'x 309 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-30463
Summary Calendar
TOMMIE ANDERSON,
Petitioner-Appellant,
versus
BUREAU OF PRISONS; WARDEN TAPIA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:04-CV-2458
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tommie Anderson, federal prisoner # 24492-034, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition.
Anderson contends that his claims were properly brought under
§ 2241 because he challenged the manner in which his sentence was
being executed by the Bureau of Prisons (BOP). Specifically, he
argued that his detention was unconstitutional because neither the
indictment, the judgment and commitment order, the presentence
*
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this opinion should not be published and is not precedent except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. 05-30463
-2-
report, nor the BOP’s records specified the penalty statute under
which he was serving his sentence.
Despite his assertions to the contrary, Anderson challenged
the legality of his conviction and sentence, not the execution of
his sentence by the BOP. Therefore, his § 2241 petition was
properly construed as a 28 U.S.C. § 2255 motion. See Tolliver v.
Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).
Further, Anderson’s claims do not fall within the savings
clause of § 2255. A prior unsuccessful § 2255 motion, or the
inability to meet the Antiterrorism and Effective Death Penalty
Act’s second or successive requirement, does not render § 2255
inadequate or ineffective. Id. at 878. Anderson has also not
shown that his claims rely on a retroactively applicable Supreme
Court decision which establishes that he may have been convicted of
a nonexistent offense and that his claims were foreclosed by
circuit law at the time when the claims should have been raised in
his trial, appeal, or first § 2255 motion. See Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001).
Accordingly, the district court’s judgment is AFFIRMED.