Perrone vs. USA, (5th Cir. 2002)

Docket Number: 02-10128

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. ** Bailey v. United States , 516 U.S. 137 (1995).

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10128 Conference Calendar NICHOLAS A. PERRONE, Petitioner-Appellant, versus UNITED STATES OF AMERICA; RALPH J. PAYNE, Warden, Respondents-Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No. 1:01-CV-156 August 20, 2002 Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM: * Nicholas A. Perrone, federal prisoner # 10293-018, appeals the district court§ 2241 habeas corpus petition. Perrone argues that his guilty plea to carrying a firearm during and in relation to a drug-trafficking crime, 18 U.S.C. § 924(c), was not knowing and intelligent in light of Bailey , ** and that the sentencing court lacked jurisdiction to convict and sentence him for that offense. He argues that he should be allowed to bring his claims in this 28 U.S.C. § 2241 habeas petition under the § 2255. § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner§ 2255 motion.§ 2255 motion does not render 28 U.S.C. § 2255 inadequate or ineffective. Tolliver v. Dobre , 211 F.3d 876, 878 (5th Cir. 2000). The petitioner bears the burden of affirmatively showing that the 28 U.S.C. § 2255 remedy is inadequate or ineffective. Pack v. Yusuff , 218 F.3d 448, 452 (5th Cir. 2000).

Perrone§ 2255 proceeding. Perrone§ 2255 motion does not render 28 U.S.C. § 2255 inadequate or ineffective. See Tolliver , 211 F.3d at 878.

AFFIRMED.

No. 02-10128