Michael Vickers v. Maye

546 F. App'x 395

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 24, 2013
• Docket: 12-50837
• Status: Unpublished

Opinion

PER CURIAM: *

Michael Dewayne Vickers, federal prisoner # 35401-177, appeals the district court’s denial of his 28 U.S.C. § 2241 petition challenging the sentence imposed under the Armed Career Criminal Act following his conviction for being a felon in possession of a firearm. Vickers argues that, as in United States v. Carrillo, 421 Fed.Appx. 395 (5th Cir.2011), he is actually innocent of the armed career criminal enhancement because newly discovered evidence shows that his prior Texas conviction for burglary of a habitation was not a crime of violence. He argues that, in light of Haley v. Cockrell, 306 F.3d 257, 267-68 (5th Cir.2002), vacated sub nom. Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), his case should be an exception to the Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001), standard to correct a miscarriage of justice.

In order to satisfy the criteria of 28 U.S.C. § 2255’s savings clause, Vickers must show that his claims are based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense and that the claims were foreclosed by circuit law at the time when they should have been raised at trial, on appeal, or in an initial § 2255 motion. See Reyes-Requena, 243 F.3d at 904. Vickers has not made the requisite showing. Accordingly, the district court’s dismissal of Vicker’s § 2241 petition is AFFIRMED.

To the extent that Vickers seeks authorization to file a successive § 2255 motion raising the above claim, the motion is DENIED. See 28 U.S.C. §§ 2244, 2255(h).

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.