United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 7, 2004
Charles R. Fulbruge III
Clerk
No. 04-10166
Summary Calendar
INOCENCIO LARA TRUJILLO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CV-145-C
--------------------
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Inocencio Lara Trujillo, federal prisoner # 11249-179, filed
a 28 U.S.C. § 2241 petition challenging his 2001 conviction for
illegal reentry after deportation, a violation of 8 U.S.C.
§ 1326. Trujillo argued that 1996 deportation proceedings
against him were constitutionally deficient and thus “to use the
results of my deportation hearing in this present case to prove
[the illegal-reentry] element of [§] 1326 violates my right to
due process.”
*
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this opinion should not be published and is not precedent except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. 04-10166
-2-
Concluding that Trujillo’s petition amounted to a 28 U.S.C.
§ 2255 motion challenging his illegal-reentry conviction and that
Trujillo had filed a prior § 2255 motion challenging the
conviction, the district court dismissed the petition as an
unauthorized successive 28 U.S.C. § 2255 motion. We review the
district court’s factual findings for clear error and its
determinations on issues of law de novo. See Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Whereas 28 U.S.C. § 2255 provides the primary means of
collaterally attacking a federal conviction and sentence, 28
U.S.C. § 2241 ordinarily is used to challenge the manner in which
a sentence is being executed. Id.; Reyes-Requena v. United
States, 243 F.3d 893, 900-01 (5th Cir. 2001). “A petition filed
under § 2241 which attacks errors that occurred at trial or
sentencing is properly construed as a § 2255 motion.” Jeffers,
253 F.3d at 830.
Trujillo argues that he is entitled to proceed under 28
U.S.C. § 2241 because the only relief he seeks is judicial review
of the 1996 deportations proceedings. A petition under 28 U.S.C.
§ 2241 for a writ of habeas corpus is a proper avenue for
challenging the legality of an order of deportation. See
Bravo v. Ashcroft, 341 F.3d 590 (5th Cir. 2003). However,
Trujillo cites no authority for his novel assertion that a
petitioner may challenge the legality of a deportation order by
reentering the country without authorization and, upon being
No. 04-10166
-3-
convicted for illegal reentry, filing a petition under 28 U.S.C.
§ 2241 challenging the prior deportation proceedings. Moreover,
Trujillo clearly challenged the illegal-reentry conviction in his
petition. Trujillo never responded to the Government’s motion to
dismiss, nor did he otherwise challenge the Government’s
characterization of his petition. The district court did not err
by dismissing the 28 U.S.C. § 2241 petition as an unauthorized
§ 2255 motion. Accordingly, the judgment of the district court
is AFFIRMED. Trujillo’s motion for the appointment of counsel is
DENIED.
AFFIRMED; MOTION DENIED.