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Kennedy v. Herrera

United States Court of Appeals, Ninth Circuit
Apr 17, 2003
61 F. App'x 467 (9th Cir. 2003)

Opinion


61 Fed.Appx. 467 (9th Cir. 2003) Thomas Ray KENNEDY, III, Petitioner-Appellant, v. Al HERRERA, Warden, Respondent-Appellee. No. 02-55784. D.C. No. CV-01-07287-MMM. United States Court of Appeals, Ninth Circuit. April 17, 2003

Submitted April 7, 2003.

This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Central District of California, Margaret M. Morrow, District Judge, Presiding.

Before RYMER, KLEINFELD and FISHER, Circuit Judges.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Thomas Ray Kennedy, III appeals pro se the district court's dismissal of his 28 U.S.C. § 2241 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), we affirm.

Kennedy seeks to raise a claim under Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). He contends that he may do this via § 2241 because he has already filed one 28 U.S.C. § 2255 motion, and he cannot raise a Richardson claim in a successive § 2255 motion. However, a federal prisoner seeking to challenge his conviction generally must do so by way of a § 2255 motion filed in the sentencing court. See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). Kennedy has failed to demonstrate that § 2255 is "inadequate or ineffective" to test the legality of his detention due to either the restrictions on the filing of second or successive motions, id., or his actual innocence, id. at 954 (declining to decide whether federal prisoners who are actually innocent may resort to § 2241 when relief is not available under § 2255 because the petitioner had not shown actual innocence) (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). The district court therefore properly dismissed Kennedy's petition. See id.

Page 468.

at 956.

We do not address Kennedy's Suspension Clause argument because it is not included in the certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).

AFFIRMED.


Summaries of

Kennedy v. Herrera

United States Court of Appeals, Ninth Circuit
Apr 17, 2003
61 F. App'x 467 (9th Cir. 2003)
Case details for

Kennedy v. Herrera

Case Details

Full title:Thomas Ray KENNEDY, III, Petitioner-Appellant, v. Al HERRERA, Warden…

Court:United States Court of Appeals, Ninth Circuit

Date published: Apr 17, 2003

Citations

61 F. App'x 467 (9th Cir. 2003)