Ricks v. Warden

Opinion

Case: 21-50077 Document: 00516664535 Page: 1 Date Filed: 03/03/2023

United States Court of Appeals for the Fifth Circuit

____________

United States Court of Appeals Fifth Circuit

No. 21-50077 Summary Calendar FILED ____________ March 3, 2023 Lyle W. Cayce

Todd Ricks, Clerk

Petitioner—Appellant,

versus

Warden FNU LNU, FCI Bastrop,

Respondent—Appellee.

______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CV-1041

______________________________

Before Stewart, Dennis, and Willett, Circuit Judges. Per Curiam: * Todd Ricks, federal prisoner # 83035-180, appeals from the dismissal without prejudice for lack of jurisdiction of his 28 U.S.C. § 2241 petition challenging the legality of his sentences for possession of a firearm and ammunition by a convicted felon, possession of a firearm in furtherance of drug trafficking, and maintaining a house used for manufacturing

_____________________

*

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

Case: 21-50077 Document: 00516664535 Page: 2 Date Filed: 03/03/2023

No. 21-50077

methamphetamine. The district court determined that Ricks could not challenge his sentence under § 2241 because he failed to satisfy the “savings clause” of 28 U.S.C. § 2255(e).

A § 2255 motion is the primary vehicle for collaterally attacking a federal sentence. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). However, a prisoner may challenge the basis of his federal custody in a § 2241 petition if he shows that the remedy under § 2255 is inadequate or ineffective to test the legality of his detention. § 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). To make that showing, a prisoner must present a claim “(i) that is based on a retroactively applicable Supreme Court decision which establishes that [he] may have been convicted of a nonexistent offense and (ii) 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.

The district court correctly concluded that Ricks had failed to identify a retroactively applicable Supreme Court decision establishing that he may have been convicted of a nonexistent offense. Ricks essentially repeats those arguments on appeal. He accordingly fails to show that the district court erred by dismissing his § 2241 petition for lack of jurisdiction. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).

AFFIRMED.