Bernas v. USA

* 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that this opinion should not be published and is not precedent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. 99-11388
Conference Calendar
RONNIE M. BERNAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:99-CV-74-C
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October 18, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ronnie M. Bernas, federal prisoner # 17580-050, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. He
asserts that he should be allowed to challenge alleged sentencing
errors in a § 2241 petition because a 28 U.S.C. § 2255 remedy
would be successive and therefore unavailable. He further argues
that the Antiterrorism and Effective Death Penalty Act’s (AEDPA)
limitations on filing successive § 2255 motions result in a
violation of the Suspension Clause if he is not allowed to
proceed with a § 2241 petition. See U.S. Const. art. 1, § 9, cl.

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No. 99-11388
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2. Bernas suggests that his unfamiliarity with the AEDPA’s
provisions resulted in a prior unsuccessful pursuit of § 2255
remedies.
The district court did not err when it dismissed Bernas’
§ 2241 petition. Bernas attempts to circumvent the limitations
on filing successive § 2255 motions by characterizing his
pleading as a § 2241 petition. Section 2255 is the proper remedy
for Bernas because he alleges errors that occurred during
sentencing, not errors in the execution of the sentence. See Ojo
v. Immigration and Naturalization Service, 106 F.3d 680, 683 (5th
Cir. 1997). Bernas cannot now demonstrate that § 2255 relief
would be inadequate merely because his previous § 2255 motion was
unsuccessful or otherwise is barred by the AEDPA’s provisions.
See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Moreover, Bernas’ unfamiliarity with the AEDPA’s provisions does
not excuse his failure to file a successful § 2255 motion. See
Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)(ignorance of
the law generally does not excuse failure to file a timely
petition). Accordingly, the district court’s judgment is
AFFIRMED.

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