Escamilla v. Warden USP Beaumont | Court Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40613 Conference Calendar

GEORGE ESCAMILLA,

Petitioner-Appellant,

versus

WARDEN USP BEAUMONT; UNITED STATES PAROLE COMMISSION,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-225 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

George Escamilla, federal prisoner # 54920-146, appeals the

district court’s denial of his 28 U.S.C. § 2241 petition. He

argues that his indictment was defective in that it did not

allege that he was subject to a life term of special parole and

that his sentence should be vacated in view of the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Because Escamilla is challenging errors that occurred at or

before sentencing, his claims should have been raised in a 28

U.S.C. § 2255 motion. See Cox v. Warden, Federal Detention Ctr.,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40613 -2-

911 F.2d 1111, 1113-14 (5th Cir. 1990). The district court

should have construed the petition as a 28 U.S.C. § 2255 motion

and dismissed it for lack of jurisdiction as Escamilla was

convicted in the District Court for the Western District of

Texas, but he filed this petition in the District Court for the

Eastern District of Texas. Ojo v. Immigration and Naturalization

Service, 106 F.3d 680, 683 (5th Cir. 1997). Further, Escamilla

has filed a previous 28 U.S.C. § 2255 motion and has not obtained

this court’s authorization to file a successive 28 U.S.C. § 2255

motion. See § 2255 8. Because the district court lacked

jurisdiction, this court lacks appellate jurisdiction to review

the issues on the merits. See United States v. Key, 205 F.3d

773, 775 (5th Cir. 2000).

AFFIRMED.

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