Ruben Lopez-Lopez v. Lisa Sanders

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-3520 ___________ Ruben Lopez-Lopez, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas.

Lisa Sanders, Warden, FCI - * Forrest City, * * Appellee. * ___________ Submitted: November 16, 2009 Filed: January 11, 2010 ___________ Before MURPHY, SMITH, and BENTON, Circuit Judges. ___________ BENTON, Circuit Judge.

Ruben Lopez-Lopez, a federal inmate in Arkansas, appeals the dismissal of his petition for habeas corpus under 28 U.S.C. § 2241. Convicted of drug offenses, Lopez-Lopez was sentenced to 235 months’ imprisonment by the United States District Court in Puerto Rico. The First Circuit affirmed the conviction and sentence.

See United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir. 2002). He later sought relief under 28 U.S.C. § 2255 in the sentencing court, alleging ineffective assistance of trial counsel. After that court and the First Circuit denied a certificate of appealability, Lopez-Lopez petitioned the district court for the Eastern District of Arkansas for relief under § 2241. The district court dismissed the petition, and this court affirmed, concluding he failed to show that § 2255 relief was either inadequate or ineffective.

See Lopez-Lopez v. Sanders, 256 Fed. Appx. 15, 16 (8th Cir. 2007), cert. denied, 128 S. Ct. 2945 (2008). Lopez-Lopez filed a new complaint, again asserting his claims under § 2241. Lopez-Lopez now argues that the savings clause of § 2255 allows him to seek relief under § 2241 and that his post-conviction counsel was ineffective. The district court1 dismissed his petition. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

A federal inmate generally must challenge a conviction or sentence through a § 2255 motion. Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004). The savings clause of § 2255 permits a petition under § 2241 if the § 2255 remedy is inadequate or ineffective to test the legality of a conviction or a sentence. See 28 U.S.C. § 2255(e). The inmate bears the burden of showing that the remedy is inadequate or ineffective. Abdullah, 392 F.3d at 959. This court reviews de novo the dismissal of a § 2241 petition. Id. Lopez-Lopez first alleges that the sentencing court misunderstood or failed to adequately address his § 2255 claim. This recasts the argument previously rejected by this court. See Lopez-Lopez, 256 Fed. Appx. at 16. As this court explained, “the fact that a claim was previously raised in a § 2255 motion and rejected by the sentencing court does not provide the necessary showing that § 2255 was inadequate or ineffective.” Id. Here, Lopez-Lopez merely cites a procedural barrier to relief, the failure by the sentencing court to address his claim on the merits. This, however, does not allow a petition under § 2241. See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (reasoning that a procedural bar to § 2255 relief does not alone render the remedy inadequate or ineffective).

Lopez-Lopez next argues that the inadequate performance of his habeas counsel entitles him to pursue relief under § 2241. His argument is without merit. There is no constitutional right to effective assistance of counsel in habeas proceedings. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Abdullah, 392 F.3d at 964. The district court correctly ruled that Lopez-Lopez’s allegation of ineffective post- conviction counsel is insufficient to establish § 2255 relief as inadequate or ineffective.

The judgment of the district court is affirmed. ______________________________