Evans v. Jeter

* 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this opinion should not be published and is not precedent except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
F I L E D
February 2, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10303
Summary Calendar
FREDERICK A. EVANS,
Petitioner-Appellant,
versus
COLE JETER, Warden, Federal Correctional Institute - Fort Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-34
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
In 1998, a federal jury convicted Frederick A. Evans, now
federal prisoner # 27502-044, of drug-trafficking offenses in the
United States District Court for the Eastern District of Missouri,
and Evans was sentenced to concurrent 325-month prison terms. He
subsequently filed an unsuccessful 28 U.S.C. § 2255 motion to
vacate and an unsuccessful second postconviction application in
that court.

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No. 06-10303
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1 There is one limited exception. “[A] § 2241 petition that
attacks custody resulting from a federally imposed sentence may
be entertained under the savings clause of § 2255 [as a § 2241
petition] if the petitioner establishes that the remedy provided
under § 2255 is inadequate or ineffective to test the legality of
his detention.” Padilla, 416 F.3d at 426. Evans has made no
contention that his petition should have been entertained under
the “savings clause” of § 2255, and, in any event, such a
contention seems meritless, see Christopher v. Miles, 342 F.3d
378, 381-82 (5th Cir. 2003).
2 That section mandates transfer of a civil case to the
proper venue when the case is dismissed for lack of jurisdiction
if it is in “the interest of justice.” It’s unclear whether the
court below dismissed Evans’s petition for lack of jurisdiction,
but it should have because a § 2255 motion must be brought in the
district of conviction and sentence. See Pack v. Yusuff, 218
F.3d 448, 452 (5th Cir. 2000).
In 2006, Evans filed the instant pro se habeas petition in the
Northern District of Texas, purportedly pursuant to 28 U.S.C. §
2241, challenging his sentence under United States v. Booker, 543
U.S. 220 (2005). The district court dismissed the petition,
probably, although not certainly, after characterizing it as
falling under § 2255. On appeal, Evans argues that the court
didn’t, but should’ve, characterized his petition as falling under
§ 2255. In any event, because Evans was collaterally attacking his
federal sentence, rather than the manner in which it was executed,
the district court should have construed his petition as under §
2255. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir.
2005).1 Although Evans contends that the district court then
should have transferred under 28 U.S.C. § 16312 the recharacterized
§ 2255 petition to a court that had jurisdiction, presumably the
district court for the Eastern District of Missouri, such a
transfer would not have been “in the interest of justice,” id.,

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No. 06-10303
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given that Evans first would have to obtain authorization from the
Eighth Circuit Court of Appeals to file a successive § 2255 motion
in the Eastern District of Missouri. See 28 U.S.C. §§ 1631, 2255,
2244(b)(3)(A).
The judgment of the district court dismissing the petition is
AFFIRMED.

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