Martinez-Perez v. Chandler

* 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this opinion should not be published and is not precedent except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. 99-41258
Conference Calendar
DANILO MARTINEZ-PEREZ,
Petitioner-Appellant,
versus
ERNEST V. CHANDLER, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 99-41258
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April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Danilo Martinez-Perez (Perez), federal prisoner # 57742-079,
appeals from the district court’s dismissal of his 28 U.S.C.
§ 2241 petition. Perez argues that he may challenge his
conviction and sentence in a § 2241 petition because his remedy
under 28 U.S.C. § 2255 is inadequate because he has not been
granted leave to pursue a successive § 2255 motion.

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No. 99-41258
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A prisoner may seek § 2241 relief if he can establish “that
the remedy provided for under § 2255 is inadequate or ineffective
to test the legality of his detention.” Cox v. Warden, Fed.
Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990)(internal
quotation and citation omitted). A prior unsuccessful § 2255
motion is not, in and of itself, sufficient to establish the
inadequacy or ineffectiveness of the remedy under § 2255. McGhee
v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979); see also United
States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999)(motion under
§ 2255 cannot become “inadequate or ineffective,” thus permitting
the use of § 2241, merely because a petitioner cannot meet the
AEDPA’s “second or successive” requirements), cert. denied, 120
S. Ct. 1208 (2000). Perez’s § 2241 petition is an attempt to
circumvent the limitations on filing a successive § 2255 motion.
Accordingly, the judgment of the district court is AFFIRMED.

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