No. 99-40675 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40675 Conference Calendar

DELL HESTER,

Petitioner-Appellant,

versus

MICHAEL PURDY,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-99-CV-93 - - - - - - - - - - February 17, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Dell Hester, federal prisoner # 21517-044, appeals from the

district court’s dismissal of his

petition.

Hester argues that he may challenge his career offender status

under the Sentencing Guidelines in a § 2241 petition because his

remedy under

is inadequate because he has not

been granted leave to pursue a successive § 2255 motion.

A prisoner may seek § 2241 relief if he can establish “that

the remedy provided for under § 2255 is inadequate or ineffective

to test the legality of his detention.” Cox v. Warden, Fed.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40675 -2-

Detention Ctr.,

(5th Cir. 1990)(internal

quotation and citation omitted). A prior unsuccessful § 2255

motion is not, in and of itself, sufficient to establish the

inadequacy or ineffectiveness of the remedy under § 2255. McGhee

v. Hanberry,

(5th Cir. 1979); see also United

States v. Barrett,

(1st Cir. 1999)(motion under

§ 2255 cannot become “inadequate or ineffective,” thus permitting

the use of § 2241, merely because a petitioner cannot meet the

AEDPA’s “second or successive” requirements), petition for cert.

filed, (U.S. Jan. 3, 2000) (No. 99-7691). Hester’s § 2241

petition is an attempt to circumvent the limitations on filing a

successive § 2255 motion. Accordingly, the judgment of the

district court is AFFIRMED. Judge Garza would dismiss Hester’s

appeal for lack of jurisdiction.