IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2009
No. 09-40362
Summary Calendar Charles R. Fulbruge III
Clerk
BERNARD VINCENT MONTGOMERY
Petitioner-Appellant
v.
UNITED STATES OF AMERICA
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:08-CV-880
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Bernard Vincent Montgomery, federal prisoner # 53653-146, appeals the
district court’s denial of the petition for a writ of habeas corpus he filed
challenging his convictions and life sentence for conspiracy to manufacture
methamphetamine, conspiracy to distribute methamphetamine, conspiracy to
import methamphetamine, distribution of methamphetamine, and possession of
a precursor chemical with intent to manufacture methamphetamine.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40362
Montgomery argues that the district court erred in determining that he was not
entitled to raise his claims in a 28 U.S.C. § 2241 petition.
Montgomery has not shown that the district court erred in its
determination. As a general rule, a federal prisoner who seeks to collaterally
challenge the legality of his convictions or sentence must file a 28 U.S.C. § 2255
motion. Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005). Such
claims may be raised in a § 2241 petition under the savings clause of § 2255(e)
only if the prisoner shows that the § 2255 remedy is “inadequate or ineffective
to test the legality of his detention.” § 2255(e). Montgomery has not made such
a showing. Montgomery argues that he should be allowed to proceed under
§ 2241, despite his inability to satisfy the test of Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001), because he has not been allowed to proceed
under § 2255 with his evidence of his innocence. His inability to meet the
requirements for filing a successive § 2255 motion does not render § 2255
inadequate or ineffective. Pack v. Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000).
Montgomery has not shown that he should be allowed to raise his claims
in a § 2241 petition notwithstanding his failure to meet the requirements of the
savings clause. He has not established that his alleged actual innocence
provides a “gateway” through which the district court is authorized to review his
claims. Additionally, Montgomery has not shown that the district court should
hear his claims because the requirements of § 2255’s savings clause violate the
Suspension Clause of the United States Constitution. See Wesson v. United
States Penitentiary Beaumont, Tex., 305 F.3d 343, 347 (5th Cir. 2002). The
judgment of the district court is AFFIRMED.
2