Truesdale v. Menifee

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2007

Charles R. Fulbruge III
Clerk
No. 06-30470
Summary Calendar

ALVIN B TRUESDALE

Petitioner - Appellant

v.

FREDERICK MENIFEE, UNITED STATES PENITENTIARY POLLOCK, EDWARD F
REILLY, JR

Respondents - Appellees

--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:05-CV-1308
--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Alvin B. Truesdale, federal inmate # 09431-058, appeals the

dismissal of his 28 U.S.C. § 2241 application. He is serving a

life sentence imposed for convictions for drug-trafficking,

firearms crimes, and maintaining a continuing criminal enterprise

(CCE). Truesdale challenged the defendants’ determination that

he is ineligible for parole because his CCE offense continued

past the November 1, 1987, effective date of the Sentencing

Reform Act (SRA) that abolished parole.

*
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this opinion should not be published and is not precedent except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. 06-30470
-2-

Truesdale contends that the district court’s reasons for

denying a motion under FED. R. CIV. P. 59 were invalid, that the

judgment was not “final” because all his arguments were not

addressed and the defendants did not answer, that the district

court failed to review the magistrate judge’s recommendation de

novo, and that dismissal with prejudice for failure to state a

claim was improper without an answer and hearing. If we assume,

as the district court held, that these claims are cognizable

under § 2241, they fail because Truesdale alleges no plausible

facts to challenge the district court’s critical determination

that the CCE offense continued past the effective date of the

SRA.

Truesdale also contends that he received ineffective

assistance of appellate counsel and that he is actually innocent

due to insufficient or unreliable evidence of a CCE or a firearm

offense. These contentions directly challenge his conviction and

are not cognizable under § 2241 because Truesdale cannot show

that the remedy provided by 28 U.S.C. § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C.

§ 2255; see Reyes-Requena v. United States, 243 F.3d 893, 904

(5th Cir. 2001). The judgment of the district court is affirmed.

Truesdale has moved for recalculation of his sentence, for a

telephone or video conference, to hold the appeal in abeyance,

and for appointment of counsel. These motions are denied.

JUDGMENT AFFIRMED; ALL MOTIONS DENIED.