Jerome Bey v. Rebecca Tamez

Fifth Circuit

Jerome Bey v. Rebecca Tamez

453 F. App'x 445

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 18, 2011

Docket11-10431

StatusUnpublished

Cited by1 cases

This text of 453 F. App'x 445 (Jerome Bey v. Rebecca Tamez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jerome Bey v. Rebecca Tamez, 453 F. App'x 445 (5th Cir. 2011).

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Opinion

PER CURIAM: *

Jerome F. Deering Bey, federal prisoner #38149-019, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. He argues that he warrants application of the 28 U.S.C. § 2255 savings clause because the Fair Sentencing Act of 2010(FSA) renders him actually innocent of his crimes of conviction, his conviction constitutes a manifest miscarriage of justice, and failure to apply the FSA to his conviction violates the Equal Protection Clause.

As Bey challenges the legality of his sentence, rather than the manner in which it is being executed, the district court did not err in concluding that his claim arises under § 2255. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir.2005). Because he has not shown that his claim “is based on a retroactively applicable Supreme Court decision which establishes that [he] may have been convicted of a nonexistent offense,” Bey has not shown that he is entitled to proceed under the savings clause of § 2255. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001). Accordingly, the judgment of the district court is AFFIRMED. The Respondent’s motion for summary affir-mance is GRANTED, and its alternative motion for an extension of time in which to file a brief is DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Jerome F. Deering Bey, federal prisoner #38149-019, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. He argues that he warrants application of the 28 U.S.C. § 2255 savings clause because the Fair Sentencing Act of 2010(FSA) renders him actually innocent of his crimes of conviction, his conviction constitutes a manifest miscarriage of justice, and failure to apply the FSA to his conviction violates the Equal Protection Clause.

As Bey challenges the legality of his sentence, rather than the manner in which it is being executed, the district court did not err in concluding that his claim arises under § 2255. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir.2005). Because he has not shown that his claim “is based on a retroactively applicable Supreme Court decision which establishes that [he] may have been convicted of a nonexistent offense,” Bey has not shown that he is entitled to proceed under the savings clause of § 2255. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001). Accordingly, the judgment of the district court is AFFIRMED. The Respondent’s motion for summary affir-mance is GRANTED, and its alternative motion for an extension of time in which to file a brief is DENIED.

*

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.

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453 F. App'x 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerome-bey-v-rebecca-tamez-ca5-2011.

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