Alvarez v. United States , 168 F. App'x 648 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-10842
Conference Calendar
ALFREDO ALVAREZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CV-327
--------------------
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Alfredo Alvarez, federal prisoner # 30170-077, appeals the
dismissal of his 28 U.S.C. § 2241 petition for lack of
jurisdiction because it was not filed in the district of his
incarceration. Alvarez argues that he should be allowed to
proceed under 28 U.S.C. § 2241 because the 28 U.S.C. § 2255
remedy is inadequate to raise his Bailey v. United States, 516
U.S. 137 (1995) claim. He argues in the alternative that the
*
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this opinion should not be published and is not precedent except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. 05-10842
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district court should have construed his petition as an amendment
to his initial § 2255 motion.
A § 2241 petition must be filed in the district where the
prisoner is incarcerated; as the sentencing court, the district
court indeed lacked jurisdiction to entertain Alvarez’s pleading
as a § 2241 petition. Hooker v. Sivley, 187 F.3d 680, 681-82
(5th Cir. 1999). Alvarez’s pleading challenged his conviction
and sentence based on errors that allegedly occurred during the
criminal proceedings; these claims should have been brought in a
§ 2255 proceeding. Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir.
1998). Alvarez has already unsuccessfully sought § 2255 relief,
and, therefore, the instant pleading, which raised claims that
were or could have been raised in a prior motion, was successive.
United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir.
2000). Alvarez had not received prior permission from us to file
a successive § 2255 motion; consequently, the district court was
without jurisdiction to construe his petition as a § 2255 motion.
Hooker, 187 F.3d at 681-82. The dismissal for lack of
jurisdiction was therefore appropriate.
Finally, Alvarez’s contentions that (1) the district court
erred in withdrawing the 28 U.S.C. § 636(b) reference of his case
to the magistrate judge; (2) the district court abused its
discretion in denying him an evidentiary hearing; (3) his § 2241
petition was supported by facts which demonstrate his entitlement
to relief; and (4) the district court abused its discretion in
No. 05-10842
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failing to consider the merits of his claims are inadequately
briefed and are therefore waived. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
AFFIRMED.