Falls v. Smith , 361 F. App'x 819 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERIC LAMAR FALLS, No. 07-55828
Petitioner - Appellant, D.C. No. CV-05-08005-AHS
v.
MEMORANDUM *
DENNIS SMITH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Federal prisoner Eric Lamar Falls appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2241 habeas petition challenging the legality
of his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
AH/Research
Falls contends that 28 U.S.C. § 2255 is an inadequate or ineffective means
for raising his claim, entitling him to pursue his claim under 28 U.S.C. § 2241.
The district court correctly determined that Falls failed to demonstrate that 28
U.S.C. § 2255 is “inadequate or ineffective” to test the legality of his detention.
See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000) (stating general rule that
the unavailability of a second or successive petition does not itself make section
2255 inadequate or ineffective). Further, Falls has failed to demonstrate “actual
innocence.” See id. at 954.
Accordingly, the district court properly dismissed Falls’ petition for lack of
jurisdiction. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per curiam)
(rejecting the use of § 2241 as substitute for a dismissed § 2255 motion).
AFFIRMED.
AH/Research 07-55828