Summary Calendar RICHARD DONALD BENSON v. David Justice; United States of America

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-10076
Summary Calendar
RICHARD DONALD BENSON
Petitioner-Appellant
v.
DAVID JUSTICE; UNITED STATES OF AMERICA
Respondents-Appellees
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Richard Donald Benson, federal prisoner #
14620-039, challenges the district court’s dismissal of his 28 U.S.C. § 2241
petition for lack of jurisdiction. Benson was convicted in 1992 in the United
States District Court for the District of Nevada for engaging in a continuing
criminal enterprise (CCE) and was sentenced to 327 months of imprisonment.
Benson argues that jurisdiction was proper in the Northern District of
Texas because he is incarcerated in the district. He also challenges his
underlying conviction, arguing that, in light of the Supreme Court’s ruling in
Richardson v. United States, 526 U.S. 813 (1999), he is “actually innocent” of the
CCE offense because the district court failed to instruct the jury that: (1) to find
United States Court of Appeals
Fifth Circuit
F I L E D
December 18, 2007
Charles R. Fulbruge III
Clerk

-- 1 of 3 --

No. 07-10076
2
Benson guilty of the offense, it had to find that he had supervised five or more
persons during unanimously-agreed-upon specific acts which comprised the
CCE; and (2) it had to acquit him of the offense if it found that his Michigan
arrest for possession of heroin involved heroin for his personal use. He also
argues that, in light of Richardson, the evidence presented at trial was
insufficient to prove that: (1) he had received substantial resources or income
from the acts alleged in the indictment; (2) he had supervised five or more
persons during the acts alleged in the indictment; (3) his Michigan arrest for
possession of heroin was related to the other alleged predicate offenses; and
(4) he had acted in concert with others during the Michigan offense. Benson
further argues that, under Richardson, the Nevada court lacked jurisdiction to
adjudicate his case and was not the proper venue for his trial.
Benson’s arguments challenge his conviction and thus are the type of
arguments reserved for § 2255 motions. See Tolliver v. Dobre, 211 F.3d 876, 877-
78 (5th Cir. 2000). The district court correctly noted that it would not usually
have jurisdiction to rule on a § 2255 motion filed by Benson, and therefore did
not have jurisdiction to construe his § 2241 motion as a § 2255 motion. See Ojo
v. I.N.S., 106 F.3d 680, 683 (5th Cir. 1997) (noting that only sentencing court has
jurisdiction to hear § 2255 motion). However, the savings clause of § 2255
creates an opportunity for the Northern District of Texas to rule on Benson’s §
2241 petition if he can show that a § 2255 motion otherwise provides him with
an “inadequate” or “ineffective” remedy. Benson has failed to make the requisite
showing. Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000); Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001). Accordingly, the judgment of
the district court is affirmed.
As Benson now has filed two § 2241 petitions in the district court
challenging his conviction under Richardson, he is hereby warned that
submitting repetitive or frivolous filings in the future will invite the imposition
of sanctions.

-- 2 of 3 --

No. 07-10076
3
AFFIRMED; SANCTION WARNING ISSUED.

-- 3 of 3 --