George v. Pitzer, et al

*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40879
Summary Calendar
ELISTON GEORGE,
Petitioner-Appellant,
versus
PERCEY PITZER, Warden; BUREAU OF PRISONS,
Respondents-Appellees.
__________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CV-1750
__________________________________________
December 6, 2000
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
Eliston George, federal prisoner # 39556-066, appeals the dismissal of his 28
U.S.C. § 2241 petition, contending that he was denied a fair trial because the trial court
impermissibly lowered the Government’s burden of proof on the issue of malice
aforethought. He maintains that 28 U.S.C. § 2255 is ineffective to test the legality of
his detention because the Antiterrorism and Effective Death Penalty Act (AEDPA) bars

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1Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 120
S. Ct. 982 (2000).
2Kinder v. Purdy, __ F.3d __ (5th Cir. Aug. 9, 2000, No. 99-41459), 2000 WL 1126401
at *3; Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
2
him from obtaining relief based on new, retroactive cases decided after his prior § 2255
motions were denied. George relies on the decisions in Sandstrom v. Montana, 442
U.S. 510 (1979), and Sullivan v. Louisiana, 508 U.S. 275 (1993). He also asserts that
in light of an allegedly flawed malice-aforethought jury instruction he is actually
innocent of committing murder in the first degree. George contends that the district
court erred in construing two letters that he filed as § 2255 motions. This issue is
raised for the first time on appeal and we do not consider it.1
The Third Circuit denied George’s request to file a successive § 2255 motion
raising his improper-jury-instruction claim. George has not established that § 2255 was
inadequate or ineffective to challenge his detention and his attempt to circumvent the
AEDPA’s provisions by filing a § 2241 petition is without merit.2 Accordingly,
the judgment of the district court is AFFIRMED.

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