United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-11071
Conference Calendar
FREDRICK LYNN MITCHELL,
Petitioner-Appellant,
versus
K. J. WENDT; UNITED STATES OF AMERICA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-1435-G
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Fredrick Lynn Mitchell, federal prisoner # 26943-177,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition, which challenged his 2001 conviction for possession
with intent to distribute more than 50 grams of cocaine base.
Mitchell argued that the district court lacked subject-matter
jurisdiction because such an offense is not a “federal crime.”
The district court concluded that Mitchell’s petition was in the
nature of a 28 U.S.C. § 2255 motion and that Mitchell had not
satisfied the “savings clause” of that statute. See Pack
v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). The district court
*
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this opinion should not be published and is not precedent except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. 04-11071
-2-
dismissed Mitchell’s petition as an unauthorized successive
28 U.S.C. § 2255 motion.
Although Mitchell may proceed under 28 U.S.C. § 2241 if he
demonstrates that 28 U.S.C. § 2255 was “inadequate or
ineffective” under the latter statute’s “savings clause,”
Mitchell has not made such a showing. Mitchell’s reliance on
United States v. Lopez, 514 U.S. 549 (1995), also demonstrates
that his claims could have been raised either on direct appeal or
in a prior 28 U.S.C. § 2255 motion; Mitchell was not convicted
until 2001. See Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001).
This appeal is without arguable merit and, therefore, it is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. Additionally, Mitchell has
previously filed a 28 U.S.C. § 2241 petition challenging his
indictment and conviction. Mitchell v. Wendt, No. 03-11312
(5th Cir. Apr. 21, 2004) (unpublished) (affirming dismissal of
28 U.S.C. § 2241 petition). Mitchell is warned that any future
frivolous pleadings under 28 U.S.C. § 2241 challenging this
conviction will invite the imposition of sanctions.
APPEAL DISMISSED; SANCTION WARNING ISSUED.