Binion v. Chandler

1 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40737
Summary Calendar
CARL LYNN BINION,
Petitioner-Appellant,
versus
ERNEST V. CHANDLER, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-174
--------------------
October 4, 2002
Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
PER CURIAM:1
Carl Binion, federal prisoner no. 94553-080, filed a petition
for habeas corpus under 28 U.S.C. § 2241 in the Eastern District of
Texas, where he was incarcerated for drug-trafficking and firearm-
use convictions 1999. He argued that his firearm conviction was
invalid because his indictment failed to charge a predicate drug
sale in which he used a firearm.
The district court correctly construed the petition as a
motion under 28 U.S.C. § 2255 because Binion was attacking the

-- 1 of 2 --

2
legality of his conviction and sentence rather than the manner of
execution of his sentence. Tolliver v. Dobre, 211 F.3d 876, 877-78
(5th Cir. 2000). The district court also correctly determined that
Binion’s case does not fit within the “savings clause” of 28 U.S.C.
§ 2255 because the remedy under 28 U.S.C. § 2255 is not “inadequate
or ineffective.” See 28 U.S.C. § 2255; Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001); Solsona v. Warden,
F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987).
The district court for the Eastern District of Texas lacked
jurisdiction over Binion’s properly construed 28 U.S.C. § 2255
motion because Binion’s conviction occurred in the Western District
of Texas. See United States v. Weathersby, 958 F.2d 65, 66 (5th
Cir. 1992) (motion under 28 U.S.C. § 2255 must be filed in district
of conviction and sentence); Solsona, 821 F.2d at 1131-32.
Although the district court dismissed Binion’s 28 U.S.C. § 2255
motion as untimely, we affirm the dismissal on grounds that the
district court lacked jurisdiction to consider the motion. See
Bickford v. International Speedway Corp., 654 F.2d 1028, 1031 (5th
Cir. 1981) (district court can be affirmed on grounds not relied on
by district court).
The judgment of the district court is
AFFIRMED.

-- 2 of 2 --