Schmueckle vs. Miles, (5th Cir. 2002)

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. 02-50018 Summary Calendar GARY SCHMUECKLE, Petitioner-Appellant, versus R.D. MILES, Warden, Respondent-Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. A-01-CV-328-JN August 16, 2002 Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM: * Gary Schmueckle, federal prisoner # 72553-080, appeals the district court's dismissal of his 28 U.S.C. § 2241 petition for failing to show that he was entitled to bring the action under the savings clause of 28 U.S.C. § 2255. Schmueckle acknowledges that in order to proceed under 28 U.S.C. § 2241 he must demonstrate that 28 U.S.C. § 2255 is an inadequate or ineffective rem edy. He argues, however, that he need not establish that his claims are based on a retroactively applicable Supreme Court decision.

Rather, Schmueckle contends that the inadequacy or ineffectiveness of 28 U.S.C. § 2255 can be demonstrated by showing § 2241 he must show that his remedy under 28 U.S.C. § 2255 woul d be inadequate or ineffective to test the legality of his detention. S ee Reyes-Requena v. United States , 243 F.3d 893, 901 (5th Cir. 2001). However, in order to make that showing, Reyes-Requena requires that a petitioner demonstrate that his claims are § 2255 motion." I d. at 904. Schmueckle has failed to satisfy the first prong of the Reyes-Requena test. Accordingly, the district court did not err in determining tha t Schmueckle could not bring his claims under the savings clause of 28 U.S.C. § 2255.

AFFIRMED .

No. 02-50018

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