Devore v. Menifee, No. 07-30787 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-30787 Conference Calendar June 19, 2008 Charles R. Fulbruge III Clerk LARRY V DEVORE Petitioner-Appellant v. FREDRICK MENIFEE Respondent-Appellee Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:07-CV-1002 Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges. PER CURIAM:* Larry V. Devore, federal prisoner # 11147-014, appeals the judgment dismissing for lack of jurisdiction his 28 U.S.C. § 2241 petition, wherein he sought to challenge the 235-month sentence imposed following his conviction of being a felon in possession of a firearm. He argues that the district court improperly applied the armed career criminal enhancement at sentencing and that a 28 U.S.C. § 2255 motion is inadequate and ineffective to test the legality of his detention. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-30787 Section 2255 provides the primary means of collaterally attacking a federal sentence based on errors that occurred at or prior to sentencing. Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990). A § 2241 petition attacking the imposition of a federally imposed sentence may be considered only where the petitioner establishes that § 2255 is inadequate or ineffective to test the legality of his detention. Id. (internal quotation and citations omitted). Devore bears the burden of showing that a § 2255 motion is an inadequate vehicle in which to bring his claims into federal court. See McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). Devore s contention is based on sentencing, and he therefore has not made the requisite showing that he was convicted of a nonexistent offense. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001); Kinder v. Purdy, 222 F.3d 209, 213-24 (5th Cir. 2000). Accordingly, the district court s dismissal of Devore s § 2241 petition is AFFIRMED. 2

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