* 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that this opinion should not be published and is not precedent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

FILED

May 14, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-51300

Summary Calendar

 

MIGUEL ANGEL MORALES-SOSA,

Petitioner-Appellant,

versus

R. D. MILES, Warden of Federal 

Correctional Institution, Bastrop,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. A-02-CV-244-SS

--------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Miguel Angel Morales-Sosa (Morales), federal prisoner

# 31037-077, sentenced in the United States District Court for

the Northern District of Texas, appeals the district court’s

dismissal of his 28 U.S.C. § 2241 petition. Morales argued in

his petition that the Government breached his plea agreement, his

plea was not voluntary, and the district court erred in accepting

the presentencing report. His petition was transferred to the
No. 02-51300

-2-

United States District Court for the Western District of Texas,

which is located in the district where he is incarcerated. On

appeal, inter alia, Morales contends that his petition should not

have been dismissed by the custodial district court, but should

have been transferred back to the sentencing court for

disposition.

Because Morales’s petition challenges trial and sentencing

errors, it should be construed as a motion arising under 28

U.S.C. § 2255 unless Morales establishes that his claims fall

under the savings clause of 28 U.S.C. § 2255. Pack v. Yusuff,

218 F.3d 448, 452 (5th Cir. 2000). The savings clause applies

where “the remedy by motion is inadequate or ineffective to test

the legality of his detention.” 28 U.S.C. § 2255.

Morales does not even attempt to carry the burden of proving

that his 28 U.S.C. § 2241 petition falls under the savings clause

of 28 U.S.C. § 2255. See Wesson v. U.S. Penitentiary Beaumont,

TX, 305 F.3d 343, 347 (5th Cir. 2002), cert. denied, 123 S. Ct.

1374 (2003). Consequently, Morales “may not avail himself of [28

U.S.C. §] 2241 relief in this case.” Pack, 218 F.3d at 453. 

Therefore, Morales’s petition “must either be dismissed or

construed as a [28 U.S.C. §] 2255 motion." Id. at 452.

The custodial court did not have jurisdiction to hear

Morales’s instant petition construed as a 28 U.S.C. § 2255 motion

because claims under 28 U.S.C. § 2255 must be heard in the

sentencing court. See id. at 451; 28 U.S.C. § 2255. However,
No. 02-51300

-3-

the sentencing court would not have jurisdiction over Morales’s

claims because Morales previously has filed a motion under 28

U.S.C. § 2255 attacking his conviction and sentence and he has

not obtained certification to file a successive motion under 28

U.S.C. § 2255. See Hooker v. Sivley, 187 F.3d 680, 681-82 (5th

Cir. 1999). Moreover, Morales has not made any showing that his

petition satisfies the applicable requirements for such a motion. 

See Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002).

Consequently, the district court did not err in dismissing

Morales’s 28 U.S.C. § 2241 petition. See Pack, 218 F.3d at 453. 

Accordingly, the judgment of the district court is hereby

AFFIRMED.