Garrott v. Pettiford ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60324
Conference Calendar
ZARKA J. GARROTT,
Petitioner-Appellant,
versus
UNKNOWN PETTIFORD, Warden,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:02-CV-648-BrS
- - - - - - - - - -
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Zarka J. Garrott, federal prisoner # 03517-025, appeals from
the dismissal with prejudice of his 28 U.S.C. § 2241 petition.
Garrott’s sentence was imposed following his conviction in
the Southern District of Illinois on drug-related charges.
See 18 U.S.C. §§ 841(a)(1), 846.
Garrott argues that his indictment is invalid because it was
not returned in compliance with Rule 6 of the Federal Rules of
Criminal Procedure. He submits that because the indictment was
invalid, the Illinois district court was without subject matter
*
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that this opinion should not be published and is not precedent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. 03-60324
-2-
jurisdiction. He argues that he is entitled to raise the issue
of subject matter jurisdiction at any time.
We cannot agree with Garrott’s contention that he is not
attacking trial or sentencing errors, but rather is attacking
his current detention. Because Garrott’s petition concerns
errors allegedly occurring during or before sentencing,
28 U.S.C. § 2255, rather than Section 2241, is the proper
means of pursuing his jurisdictional argument. See Ojo v. INS,
106 F.3d 680, 683 (5th Cir. 1997).
“Under the savings clause of § 2255, if the petitioner can
show that § 2255 provides him with an inadequate or ineffective
remedy, he may proceed by way of § 2241.” Wesson v. U.S.
Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002),
cert. denied, 123 S. Ct. 1374 (2003). Garrott, however, has
failed to show that he meets the requirements of the savings
clause. See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). To the extent that Garrott contends that
Section 2255 is inadequate or ineffective to pursue relief based
on Apprendi v, New Jersey, 530 U.S. 466 (2000), his argument
fails because he cannot make out a sufficient showing to invoke
the savings clause on his Apprendi claim. See Wesson, 305 F.3d
at 347.
Finally, because he has failed to brief the issue, Garrott
has waived any argument regarding the district court’s
determination that it lacked jurisdiction to consider Garrott’s
petition as a 28 U.S.C. § 2255 motion. See Yohey v. Collins, 985
No. 03-60324
-3-
F.2d 222, 224-25 (5th Cir. 1993). The judgment of the district
court is AFFIRMED.