Barrera-Diaz v. Pettiford

* 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that this opinion should not be published and is not precedent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
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60235
Conference Calendar
FRANCISCO BARRERA-DIAZ,
Petitioner-Appellant,
versus
M. PETTIFORD,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:03-CV-439-R
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Francisco Barrera-Diaz (Barrera), federal prisoner no.
38552-004, filed a petition for habeas corpus under 28 U.S.C.
§ 2241 in the Southern District of Mississippi, where he is
incarcerated for drug-trafficking and firearm convictions. He
contends that his firearm conviction is invalid under Bailey v.
United States, 516 U.S. 137 (1995).
The district court correctly construed the petition as a
successive motion under 28 U.S.C. § 2255 because Barrera has
filed a previous motion and again attacks his conviction and

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No. 04-60235
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sentence. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.
2000). The district court also correctly determined that
Barrera’s petition is not permitted by the “savings clause” of 28
U.S.C. § 2255 because Barrera was able to assert his Bailey claim
in a prior motion. See 28 U.S.C. § 2255; Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). The district court
lacked jurisdiction over Barrera’s successive motion because it
could be filed only if authorized by the Eleventh Circuit Court
of Appeals and only in the Southern District of Florida, where
Barrera was convicted. See 28 U.S.C. § 2255.
The appeal is frivolous, and it is dismissed. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
Further frivolous filings will subject Barrera to sanctions.
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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