Case: 13-10372       Document: 00512371887         Page: 1     Date Filed: 09/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 12, 2013
                                     No. 13-10372
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




GUSTAVUS JACKSON,

                                                  Petitioner–Appellant,

versus

WARDEN RANDALL CHANDLER,

                                                  Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-86




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Gustavus Jackson, federal prisoner # 34555-044, appeals the dismissal of
his 28 U.S.C. § 2241 petition in which he challenged the sentence imposed fol-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-10372      Document: 00512371887      Page: 2    Date Filed: 09/12/2013

                                   No. 13-10372

lowing his guilty-plea conviction of possession with intent to distribute in excess
of 100 grams of cocaine base. Citing Apprendi v. New Jersey, 

(2000), Jackson asserted that he should have been held accountable only for the
amount of drugs alleged in the indictment and that he was actually innocent of
the 120-month sentence, which he contended was improperly based on drug
amounts not proven to a jury. The district court dismissed, concluding that
Jackson’s claims arose under 28 U.S.C. § 2255. We review the dismissal of a
§ 2241 petition de novo. Kinder v. Purdy, 

, 212 (5th Cir. 2000).
      Although, as a general rule, a federal prisoner who seeks to challenge, col-
laterally, the legality of a conviction or sentence must file a § 2255 motion, see
Padilla v. United States, 

, 425-26 (5th Cir. 2005), the savings clause
of § 2255 allows him to attack the legality of his conviction or sentence in a
§ 2241 petition if he can show that the remedies provided under § 2255 are
“inadequate or ineffective to test the legality of his detention,” § 2255(e); see
Reyes-Requena v. United States, 

, 901 (5th Cir. 2001). To do so,
Jackson must make 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’s trial, appeal,
or first § 2255 motion.” Reyes-Requena, 243 F.3d at 904.
      Jackson has not shown that he was convicted of a nonexistent offense. See
Padilla, 416 F.3d at 427; Wesson v. U.S. Penitentiary Beaumont, Tex., 

, 348 (5th Cir. 2002). Further, although he asserts that his claim falls within
the savings clause because he previously filed an unsuccessful § 2255 motion, the
fact that he filed a prior unsuccessful § 2255 motion is, in and of itself, not suffi-
cient to establish the inadequacy or ineffectiveness of the remedy under § 2255.
See Kinder, 222 F.3d at 214. Accordingly, because the district court did not err
in dismissing Jackson’s § 2241 petition, the judgment is AFFIRMED.



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