Betts v. Johnson

Opinion

Case: 21-30766 Document: 00516611195 Page: 1 Date Filed: 01/13/2023

United States Court of Appeals for the Fifth Circuit

____________

United States Court of Appeals Fifth Circuit

No. 21-30766 Summary Calendar FILED ____________ January 13, 2023 Lyle W. Cayce

Darrin Lashaon Betts, Clerk

Petitioner—Appellant,

versus

Calvin Johnson, Warden, Federal Correctional Complex Pollock,

Respondent—Appellee.

______________________________

Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:21-CV-3219

______________________________

Before Barksdale, Elrod, and Haynes, Circuit Judges. Per Curiam: * Darrin Lashaon Betts, federal prisoner # 21755-078 and proceeding pro se, appeals the dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 habeas petition, challenging his 240-months’ sentence for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). The district court concluded Betts could not contest

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 21-30766 Document: 00516611195 Page: 2 Date Filed: 01/13/2023

No. 21-30766

his sentence under § 2241 because he failed to satisfy the “savings clause” of 28 U.S.C. § 2255(e). Whether jurisdiction exists is a question of law reviewed de novo. E.g., Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999).

A § 2255 motion is the primary vehicle for collaterally attacking a federal sentence. E.g., Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). A prisoner may challenge the basis of his federal custody in a § 2241 petition, however, if he shows the remedy under § 2255 is “inadequate or ineffective to test the legality of his detention”. 28 U.S.C. § 2255(e); see also Reyes- Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (articulating savings-clause test). To satisfy this burden, a prisoner must present a claim: “that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense”; and “that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion”. Reyes-Requena, 243 F.3d at 904.

Betts’ challenge is not based on a retroactively-applicable Supreme Court decision establishing he may have been convicted of a non-existent offense; therefore, he fails to show a § 2255 remedy is “is inadequate or ineffective to test the legality of his detention”. E.g., id. at 901.

AFFIRMED.