IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60229 Conference Calendar

JERRY COOK,

Plaintiff-Appellant,

versus

KHURSHID Z. YUSUFF,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:00-CV-16-Brs -------------------- October 18, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jerry Cook, federal prisoner #03509-043, appeals from the

district court's dismissal of his

petition for a

writ of habeas corpus based on a lack of jurisdiction. After a

de novo review of the record, we dismiss the appeal as frivolous.

Cook argues that his § 2241 petition was proper because both

a prior motion under § 2255 and a motion for leave to file a

second or successive § 2255 motion were denied. We have

consistently noted, however, that a prior denial of a § 2255

motion or the denial of a motion for leave to file a second or

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-60229 -2-

successive § 2255 motion does not render the § 2255 remedy

inadequate or ineffective so as to permit a petition under

§ 2241. See Pack v. Yusuff,

(5th Cir.

2000).

Cook also argues that his § 2241 petition was proper because

he is actually innocent of the offense for which he was

convicted. Cook merely attempts to avoid prior decisions made

under § 2255 by impermissibly offering the same or similar

arguments under § 2241. See Kinder v. Purdy,

(5th Cir. 2000).

Cook further argues that the district court erred by not

granting him an evidentiary hearing. We find that the district

court did not err by not holding a hearing. See United States v.

Tubwell,

(5th Cir. 1994)("An evidentiary hearing

is not required if the record is complete or the petitioner

raises only legal claims that can be reviewed without the

presentation of additional evidence.").

Finally, Cook argues that he should be granted habeas relief

because of a new rule of constitutional law made retroactive to

cases on collateral review in Kumho Tire Co., Ltd. v. Carmichael,

(1999). Such an argument is properly made

in a motion for leave to file a second or successive motion under

. Because the pleadings of pro se litigants are

to be liberally construed; Haines v. Kerner,

(1972); we interpret Cook's argument as a request for leave to

file a successive motion under § 2255, but we deny his request.

Cook's reliance on Kumho is misplaced because that case did not No. 00-60229 -3-

announce a new rule of constitutional law but rather further

refined the scope of Fed. R. Evid. 702. See Kumho Tire Co.,

.

Because the appeal is frivolous, it is DISMISSED. See

Howard v. King,

(5th Cir. 1983); 5th Cir. R.

42.2. This is the fourth time that Cook has been before this

court challenging his 1994 conviction and sentence for armed bank

robbery. He is warned that further frivolous pleadings in this

court challenging this conviction and/or sentence will invite the

imposition of sanctions, which may include monetary fines and/or

restrictions on his ability to file future pleadings in federal

court.

APPEAL DISMISSED; SANCTION WARNING ISSUED.