IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30397
Summary Calendar
MICHAEL L. MONTALVO,
Petitioner-Appellant,
versus
CARL CASTERLINE,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-2499
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August 29, 2002
Before GARWOOD, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Michael Montalvo, federal prisoner # 87224-012, is serving a
life sentence following a jury conviction of conducting a
continuing criminal enterprise, a violation of 21 U.S.C. § 848.
He appeals the district court’s denial of his 28 U.S.C. § 2241
petition and argues that the district court erred in determining
that his alleged Richardson v. United States, 526 U.S. 813
*
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that this opinion should not be published and is not precedent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. 02-30397
-2-
(1999), error did not meet the savings clause requirements and
thus could not be raised in a 28 U.S.C. § 2241 petition.
Section 2241 is used ordinarily to challenge the manner in
which a sentence is being executed. Reyes-Requena v. United
States, 243 F.3d 893, 900 (5th Cir. 2001). Under the “savings
clause,” however, if a prisoner can demonstrate that the 28
U.S.C. § 2255 remedy would be “inadequate or ineffective to test
the legality of [the prisoner's] detention,” he may be permitted
to bring a habeas corpus claim pursuant to 28 U.S.C. § 2241
instead. See id. at 901 (quoting 28 U.S.C. § 2255).
Montalvo cannot establish that a remedy under 28 U.S.C.
§ 2255 is inadequate, because his Richardson argument was raised
in his initial 28 U.S.C. § 2255 motion and was rejected by the
sentencing court, the Eastern District of California in 2001. “A
prior unsuccessful [28 U.S.C.] § 2255 motion . . . does not make
§ 2255 inadequate or ineffective.” See Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir.), cert. denied, 122 S. Ct. 476 (2001).
Moreover, Montalvo is precluded from re-raising his Richardson
claim in a successive 28 U.S.C. § 2255 motion, because a claim
presented in a prior § 2255 motion “shall be dismissed.” See 28
U.S.C. §§ 2244(b)(1), 2255. His inability to meet the
requirements for filing a successive 28 U.S.C. § 2255 motion also
does not render 28 U.S.C. § 2255 an inadequate remedy. Jeffers,
253 F.3d at 830.
AFFIRMED.