Hester v. Purdy

No. 99-40675
-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that this opinion should not be published and is not precedent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. 99-40675
Conference Calendar
DELL HESTER,
Petitioner-Appellant,
versus
MICHAEL PURDY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CV-93
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February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Dell Hester, federal prisoner # 21517-044, appeals from the
district court’s dismissal of his 28 U.S.C. § 2241 petition.
Hester argues that he may challenge his career offender status
under the Sentencing Guidelines 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.
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.

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No. 99-40675
-2-
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), petition for cert.
filed, (U.S. Jan. 3, 2000) (No. 99-7691). Hester’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. Judge Garza would dismiss Hester’s
appeal for lack of jurisdiction.

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