IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40994
Conference Calendar
JOSE PADILLA AVENDANO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CV-57
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June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Padilla Avendano (Avendano), federal prisoner #337799-
008, appeals the district court’s dismissal of his purported 28
U.S.C. § 2241 petition. Because Avendano’s petition challenged
an order by the United States District Court for the District of
Arizona, the district court did not err in construing his
petition as a 28 U.S.C. § 2255 motion. See Tolliver v. Dobre,
211 F.3d 876, 877-78 (5th Cir. 2000). Avendano has not shown
that “the remedy provided for under [28 U.S.C.] § 2255 is
inadequate or ineffective to test the legality of his detention.”
*
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that this opinion should not be published and is not precedent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. 00-40994
-2-
Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th
Cir. 1990) (internal quotations and citation omitted). He has
not shown that he will raise a claim “(i) that is based on a
retroactively applicable Supreme Court decision which establishes
that petitioner may have been convicted of a nonexistent offense
and (ii) that was foreclosed by circuit law at the time when the
claim should have been raised in the petitioner’s trial, appeal,
or first § 2255 motion.” See Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001). Because Avendano was convicted
and sentenced by the United States District Court for the
District of Arizona, the district court for the Eastern District
of Texas lacked jurisdiction to consider his 28 U.S.C. § 2255
motion. See United States v. Weathersby, 958 F.2d 65, 66 (5th
Cir. 1992).
AFFIRMED.