Avery v. Haro

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10824
Conference Calendar
PERREN O. AVERY,
Petitioner-Appellant,
versus
JOSEPH M. HARO,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CV-141-C
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Perren O. Avery, federal prisoner # 05310-088, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus
petition. Avery contends that he is merely seeking judicial
review of his motion to exclude the audiotape and transcript that
was denied in the district court. He argues that his defense
counsel withheld evidence of this audiotape and transcript from
him and the district court and was ineffective for advising him
to plead guilty because the tape showed that he was not guilty of

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2 Avery raised this issue in his direct appeal, and the
circuit court held that the district court had not clearly erred
in determining the quantity of cocaine. United States v. Avery,
141 F.3d 1160 at * 3 (4th Cir. 1998) (unpublished). Issues
raised and rejected on direct appeal may not be presented in a
subsequent 28 U.S.C. § 2255 proceeding. United States v. Kalish,
780 F.2d 506, 508 (5th Cir. 1986). Likewise, Avery cannot get a
second bite in this 28 U.S.C. § 2241 petition.
the offense to which he pleaded guilty. He also challenges the
district court’s sentencing determination concerning the quantity
of cocaine base.2 He argues that he should be allowed to bring
his claims in this 28 U.S.C. § 2241 habeas petition under the
“savings clause” of 28 U.S.C. § 2255.
“[T]he savings clause of § 2255 applies to a claim (i) that
is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted
of a nonexistent offense and (ii) that was foreclosed by circuit
law at the time when the claim should have been raised in the
petitioner’s trial, appeal, or first § 2255 motion.” Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
A prior unsuccessful 28 U.S.C. § 2255 motion does not render
28 U.S.C. § 2255 inadequate or ineffective. Tolliver v. Dobre,
211 F.3d 876, 878 (5th Cir. 2000). The petitioner bears the
burden of affirmatively showing that the 28 U.S.C. § 2255 remedy
is inadequate or ineffective. Pack v. Yusuff, 218 F.3d 448, 452
(5th Cir. 2000).
Avery’s prior unsuccessful 28 U.S.C. § 2255 motion does not
render 28 U.S.C. § 2255 inadequate or ineffective, nor does the

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denial of his motion to file a successive 28 U.S.C. § 2255
motion. See Tolliver, 211 F.3d at 878.
AFFIRMED.

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