United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-41290
Conference Calendar
GEORGE D. FARQUHAR,
Petitioner-Appellant,
versus
N. LEE CONNER, Warden,
Respondent-Appellee.
Consolidated with
No. 02-41411
GEORGE D. FARQUHAR,
Petitioner-Appellant,
versus
N. LEE CONNER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:01-CV-72
USDC No. 5:01-CV-88
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
No. 02-41290
c/w No. 02-41411
-2-
George D. Farquhar, federal prisoner # 28074-077, appeals
the district court’s dismissal of his two 28 U.S.C. § 2241
petitions challenging his convictions for failing to appear for
sentencing hearings on prior convictions. Because Farquhar’s
28 U.S.C. § 2241 petitions challenged the legality of his
convictions, Farquhar had to show that 28 U.S.C. § 2255 provided
him with an inadequate or ineffective remedy. See Pack v.
Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). “[T]he savings clause
of § 2255 applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which established that the
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." Reyes-Requena v. United States, 243
F.3d 893, 904 (5th Cir. 2001).
Farquhar argues that the district court improperly construed
his 28 U.S.C. § 2241 petitions as successive 28 U.S.C. § 2255
applications. The record, however, belies Farquhar’s claim and
shows that the district court properly considered whether
Farquhar could bring his claims in 28 U.S.C. § 2241 petitions
under the savings clause of 28 U.S.C. § 2255.
Farquhar has also not shown that 28 U.S.C. § 2255 provided
him with an ineffective or inadequate remedy. Neither a prior
R. 47.5.4.
No. 02-41290
c/w No. 02-41411
-3-
unsuccessful 28 U.S.C. § 2255 motion, nor the inability to meet
the requirement for bringing a successive 28 U.S.C. § 2255 motion
makes 28 U.S.C. § 2255 inadequate or ineffective. Tolliver v.
Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Farquhar further argues that he is actually innocent of
willfully failing to appear. Because Farquhar fails to identify
any retroactively applicable Supreme Court decisions
demonstrating that he was convicted of a non-existent offense,
this challenge cannot be brought in a 28 U.S.C. § 2241 petition.
See Reyes-Requena, 243 F.3d at 904.
We do not consider Farquhar’s argument that an alleged
defect in the indictment deprived the trial court of subject
matter jurisdiction because it is raised for the first time in
his reply brief. See Knighten v. Commissioner, 702 F.2d 59, 60 &
n.1 (5th Cir. 1983). Accordingly, the judgments of the district
court are AFFIRMED.