### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-11145 Summary Calendar

JOSEPH E. MARSHALL, Petitioner-Appellant

v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL; KAREN EDENFIELD, Warden, Respondents-Appellees

Appeal from the United States District Court for the Northern District of Texas USDC No. 1:11-CV-189

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: * Joseph E. Marshall, f ederal prisoner # 12356-032, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his conviction for conspiracy to possess oxycodone with the intent to distribute. Marshall argues that the district court erred in dismissing his petition because (1) requiring him t o f ile a § 2255 motion would improperly suspend his constitutional righ t t o a writ of habeas corpus, (2) any remedy under § 2255 would be inadequate to test U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 17, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-11145 Document: 00511923510 Page: 1 Date Filed: 07/17/2012No. 11-11145

the legality of his detention because his motion would be barred by the statute of limitations, and (3) pursuant to § 2241(b), the district should have transferred his petition to a court with proper jurisdiction. We review a district court’s dismissal of a § 2241 petition de novo. Kinder v. Purdy , 222 F.3d 209, 212 (5th Cir. 2000. “A section 2241 petition that seeks to challenge the validity of a f e d e r al sentence must either be dismissed or construed as a section 2255 motion.” Pack v. Yusuff , , 218 F.3d 448, 452 (5th Cir. 2000). A § 2241 petition that attacks custody resulting from a federally imposed sentence may be entertained under the savings clause of § 2255 if the petitioner establishes that the remedy provided under § 2255 is “inadequate or ineffective” to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).Marshall’s assertion that the dismissal of his § 2241 petition would result in a miscarriage of justice by suspending his constitutional right to seek a writ of habeas corpus is conclusi o n al at best and is not sufficient to make the necessary affirmative showing for relief under the savings clause. See Koch v. Puckett , 907 F.2d 524, 530 (5th Cir. 1990) (stating that conclusional allegations fail to estab li s h a v alid claim). In any event, we have previously rejected a similar suspension clause argument. See Wesson v. United States Penitentiary Beaumont, TX

, 305 F.3d 343, 347 ( 5 th Cir. 2002) (concluding that § 2255’s savings clause does not violate the Suspension Clause). To demonstrate that the remedy provided under § 2255 is inadequate or ineffective, Marshall must establi s h th at his claim is “(i)

. . . based on a retroactively applicabl e S u preme Court decision which establishes that [he]

. . . may have been convicted of a no n e xistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in [his] . . . trial, appeal, or first § 2255 motion.” Reyes-Requena v . United States , 243 F.3d 893, 904 (5th Cir. 2001). Marshall’s assertions that Kentucky is not a

2 Case: 11-11145 Document: 00511923510 Page: 2 Date Filed: 07/17/2012No. 11-11145

state and that his indictment was invalid do not meet this standard. See Padilla v. United States , 416 F.3d 424, 427 (5th Cir. 200 5). Equally unavailing i s Marshall’s assertion that the district court should h av e transferred his petition pursuant to § 2241(b). Section 2241(b) si m p ly states that courts “may” transfer a habeas application to a court of appropriate jurisdiction; however, there is no mandate that courts do so. Moreover, Marshall does not demonstrate that a transfer instead of a dismissal would have served the best interests of justice. See 28 U

. S

. C

. § 1631. Accordingly, the district court’s judgment is AFFIRMED.

3 Case: 11-11145 Document: 00511923510 Page: 3 Date Filed: 07/17/2012