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United States v. Cook ( 2022 )


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  • Case: 21-30330     Document: 00516256338          Page: 1    Date Filed: 03/28/2022
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
March 28, 2022
No. 21-30330
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Willie James Cook,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:21-CV-1010
USDC No. 3:19-CR-174-1
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Willie James Cook, federal prisoner # 21194-035, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his
    28 U.S.C. § 2255
     motion challenging his sentence for possessing a firearm as a felon in
violation of
    18 U.S.C. § 922
    (g). In his § 2255 motion, Cook contended that
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-30330      Document: 00516256338           Page: 2   Date Filed: 03/28/2022
No. 21-30330
he received ineffective assistance when his counsel failed to advocate for a
reduced sentence based on time that he served in state custody for an offense
related to his § 922(g) offense. The district court dismissed the § 2255
motion as untimely and, alternatively, on the merits. Cook also appeals the
district court’s dismissal without prejudice of his motion to modify his
sentence, which is construed as arising under
    28 U.S.C. § 2241
    .
Because Cook fails to challenge the district court’s denial of his § 2255
motion as time barred, he has abandoned the issue. See Hughes v. Johnson,
    191 F.3d 607
    , 613 (5th Cir. 1999). Cook has thus not “made a substantial
showing of the denial of a constitutional right,”
    28 U.S.C. § 2253
    (c)(2), or
shown “that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel,
    529 U.S. 473
    ,
484 (2000). It is unnecessary to address the merits of his claims. See Houser
v. Dretke,
    395 F.3d 560
    , 561-62 (5th Cir. 2004). Accordingly, a COA is
DENIED.
The district court dismissed Cook’s § 2241 petition without prejudice
for lack of jurisdiction because Cook failed to exhaust his administrative
remedies. Cook does not argue that he exhausted administrative remedies;
he instead argues that the exhaustion requirement is not jurisdictional. His
argument is unavailing. See Pierce v. Holder,
    614 F.3d 158
    , 160 (5th Cir. 2010).
Even if Cook was correct in his assertion, because Cook was incarcerated in
the federal prison in Beaumont, Texas when he filed his § 2241 petition in
the Western District of Louisiana, the district court nevertheless lacked
jurisdiction to entertain the petition. See United States v. Brown,
    753 F.2d 455
    , 456 (5th Cir. 1985). Accordingly, the district court’s dismissal of Cook’s
§ 2241 petition without prejudice is AFFIRMED. Cook’s motion to
proceed in forma pauperis is DENIED.
2