Pardue v. Conner

* 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that this opinion should not be published and is not precedent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. 99-41247
Conference Calendar
JERRY T. PARDUE,
Petitioner-Appellant,
versus
N. L. CONNER, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:99-CV-115
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August 24, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Jerry T. Pardue, federal prisoner #06225-112, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition for
writ of habeas corpus. Pardue argues that the district court
erred in dismissing his § 2241 petition because he is actually
innocent, he was denied Due Process, and his prior § 2255 motion
was denied in the Seventh Circuit.
Pardue’s § 2241 petition attacks alleged errors at trial.
Accordingly, his petition should have been brought as a § 2255
motion to vacate, set aside, or correct sentence. See Tolliver

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No. 99-41247
-2-
v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). To the extent
that a certificate of appealability (COA) is required, COA is
denied. See § 2253(c)(2). Pardue required permission from the
Seventh Circuit before he could file a successive § 2255 motion,
and he has not obtained any such permission. See §§ 2244, 2255.
In addition, even if Pardue had permission to file a successive
§ 2255 motion, Pardue could file it only in Illinois, and it was
improperly filed in Texas. See § 2255. Accordingly, the
district court properly dismissed Pardue’s petition. Pardue’s
appeal is frivolous because it lacks any arguable basis in law or
fact, and it is dismissed as such. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. All outstanding
motions are denied.
APPEAL DISMISSED AS FRIVOLOUS; COA DENIED; ALL OUTSTANDING
MOTIONS DENIED.

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