### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-10376 Summary Calendar

TRACY MOOREHEAD, Petitioner - Appellant

v. WARDEN RONALD W. CHANDLER, Respondent - Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 4:13-CV-81

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges. PER CURIAM: * Proceeding pro se and in forma pauperis on appeal, T racy M o orehead, federal p risoner # 41233-424, was convicted in the Northern District of Iowa of conspiracy to distribute cocaine base and was sentenced to 240 months in prison. He i s incarcerated at a federal facility in Fort Worth , Texas, a nd filed a 28 U.S.C. § 2241 petition for h abeas relief in the Northern District o f Texas, which the district court dismissed. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D October 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-10376 Document: 00512402107 Page: 1 Date Filed: 10/09/2013No. 13-10376

The district court’s factual findings are reviewed for clear error; its legal conclusions, de novo . E.g. , Padilla v. United S tates , 416 F.3d 424, 425 ( 5th Cir. 2005). A § 2241 petition “attacks the m anner in which a sentence is carried out

or the prison authorities’ determination of its duration, and must be filed in the

same district where the p risoner is incarcerated”. Pack v. Y u suff , 218 F .3d 448, 451 ( 5th Cir. 2000). By contra s t , a 2 8 U.S.C. § 2255 motion is the primary method of collaterally attacking a federal sentence; reli e f “i s w arr a nt e d f o r errors cognizable on collatera l r e vi e w that occurred at o r prior to sentencing”. I d. (internal quotation marks and citation omitted). A § 2255 motion must be filed in the sentencing court. Id. “A § 2241 petition which attacks errors th at occur at trial o r s entencing is properly construed under § 2255.” Tolliver v. Dobre , 2 11 F.3d 876, 877-78 (5th Cir. 2 000). Even then, a court can only construe such a petition under § 2255 if it could have p roperly heard a § 2255 mo t i o n i n t h e first instance, i.e. , if that court is the sentencing court. See Ojo v. I.N.S. , 106 F.3d 680, 683 (5th Cir. 1997) (“Although a § 2241 p etition attacking m atters w i t h i n t he province o f § 2255 should be construed as a § 2255 petition, a court without j urisdiction t o hear a § 2255 petition can hardly be expected to do that.”) (citation omitted). Moorehead asserts error in the d e termination of his sentence by the sentencing court. He does n ot challenge the manner in which his sentence is being carried out or the determination by prison authorities of its duration. The district court c ommitted n o e rror in c oncluding Moorehead should have filed his claims as part of a § 2255 motion in a court w ith the authority to hear that motion, namely the Northern District of Iowa. Secti o n 2 2 55 also contains a “savings clause”, which permits courts to entertain a § 2241 p etition attacking custody imposed by a federally imposed sentence when the remedy u nder § 2 255 is ineffective or inadequate. See 28 U

. S

. C

. § 2255(e); see, e.g. , Padilla , 416 F.3d at 426. “The petitioner bears th e burden o f demonstrating that the sect i o n 2 255 remedy is inadequate or 2 Case: 13-10376 Document: 00512402107 Page: 2 Date Filed: 10/09/2013No. 13-10376

ineffective.” Pack , 218 F.3d at 452. Our c o u r t has c larified the circumstances where a petitioner meets that b urden, holding the savings c lause “applies to a claim of actual innocence ‘(i) that is based on a r etroactively applicable S upreme Court decision which establishes that the petitioner m ay have been convicted of

a nonexistent o f

fense and (ii) that was foreclosed by circuit law at the time when the claim should h ave been raised i n the petitioner’s trial, appeal, or first § 2255 motion’”. Padilla , 4 16 F.3d at 426 (quoting Reyes-Requena v. United States , 243 F.3d 893, 9 04 (5th Cir. 2001)). “Only the custodial court has the jurisdiction to determine whether a petitioner’s claims are properly brought under § 2 241 via the savings clause of § 2255.” Id. (citation omitted). Moorehead filed a mo t i o n under § 2255 in the Northern District of Iowa in November 2010, seeking relief for i n effective a ssistance o f c ounsel. That motion was denied in February 2013, several weeks after Moorehead filed the § 2241 at issue here. “This Court and other Courts o f Appeals have c onsistently noted that ‘a prior unsuccessful [section] 2255 motion is i nsuffici e nt, in and of itself, to show the inadequacy or ineffectiveness of the remedy’.” Pack , 218 F.3d at 452 (quoting McGhee v. Hanberry , 604 F.2d 9, 10 (5th Cir. 1979)). Although Moorehead claims he is “ actually innocent of his sente[n]ce”, he does not offer evidence or explain his reasoning for the assertion. Moorehead neither a l l e g e s available remedies under § 2255 are i n a dequate or ineffective, nor makes a claim based on a retroactively applicable Supreme Court decision rendering his o ffense nonexistent. The district cou r t p r o p erly refused to entertain the § 2241 petition under the savings clause. AFFIRMED.

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