Bernas vs. USA, (5th Cir. 2000)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 99-11388 Conference Calendar RONNIE M. BERNAS, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. Appeal from the United States District Court for the Northern District of Texas USDC No. 1:99-CV-74-C October 18, 2000 Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM: * Ronnie M. Bernas, federal prisoner # 17580-050, appeals the district court§ 2241 petition. He asserts that he should be allowed to challenge alleged sentencing errors in a § 2241 petition because a 28 U.S.C. § 2255 remedy would be successive and therefore unavailable. He further argues that the Antiterrorism and Effective Death Penalty Act§ 2255 motions result in a violation of the Suspension Clause if he is not allowed to proceed with a § 2241 petition. See U.S. Const. art. 1, § 9, cl. 2. Bernas suggests that his unfamiliarity with the AEDPA§ 2255 remedies.
The district court did not err when it dismissed Bernas§ 2241 petition. Bernas attempts to circumvent the limitations on filing successive § 2255 motions by characterizing his pleading as a § 2241 petition. Section 2255 is the proper remedy for Bernas because he alleges errors that occurred during sentencing, not errors in the execution of the sentence. See Ojo v. Immigration and Naturalization Service , 106 F.3d 680, 683 (5th Cir. 1997). Bernas cannot now demonstrate that § 2255 relief would be inadequate merely because his previous § 2255 motion was unsuccessful or otherwise is barred by the AEDPAÂ’s provisions.
See Tolliver v. Dobre , 211 F.3d 876, 878 (5th Cir. 2000).
Moreover, Bernas§ 2255 motion. See Fisher v. Johnson , 174 F.3d 710, 714 (5th Cir. 1999)(ignorance of the law generally does not excuse failure to file a timely petition). Accordingly, the district courtÂ’s judgment is AFFIRMED.
No. 99-11388
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This document cites
- Constitution of the United States (Annotated) - Section 9: Powers Denied to Congress
- U.S. Court of Appeals for the Fifth Circuit - Sylvester Tolliver, Petitioner-Appellant, v. Jonathon Dobre, Respondent-Appellee., 211 F.3d 876 (5th Cir. 2000)
- U.S. Court of Appeals for the Fifth Circuit - Thomas James Fisher, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 174 F.3d 710 (5th Cir. 1999)
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 2255 - Sec. 2255. Federal custody; remedies on motion attacking sentence
- U.S. Court of Appeals for the Fifth Circuit - Anthony Ojo, Plaintiff-Appellant, v. Immigration and Naturalization Service, Defendant-Appellee., 106 F.3d 680 (5th Cir. 1997)
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