Thompson v. Warden

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 21, 2023
• Docket: 20-40593
• Status: Unpublished

Opinion

Case: 20-40593 Document: 00516684480 Page: 1 Date Filed: 03/21/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 20-40593 FILED March 21, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk Chadwick Marvin Thompson,

Petitioner—Appellant,

versus

Warden, FCI Texarkana,

Respondent—Appellee. ______________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:20-CV-46 ______________________________

Before Barksdale, Elrod, and Haynes, Circuit Judges. Per Curiam:* Chadwick Marvin Thompson, federal inmate # 07787-078 and proceeding pro se, appeals the dismissal of his 28 U.S.C. § 2241 habeas petition. He was convicted in 2013 for conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, and sentenced as a career offender under Sentencing

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 20-40593 Document: 00516684480 Page: 2 Date Filed: 03/21/2023

No. 20-40593

Guideline § 4B1.1(b)(1). He contends: application of the career-offender enhancement was predicated on his 1999 conviction for illegal possession of a machine gun; that conviction would be invalid under intervening Supreme Court decisions; therefore, his current sentence was enhanced improperly for a nonexistent crime. The district court ruled Thompson’s challenge: had to be pursued in a 28 U.S.C. § 2255 motion to vacate, set aside, or correct; and did not fall within § 2255(e)’s “savings clause”. The court’s factual findings are reviewed for clear error; its legal conclusions, de novo. E.g., Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). Thompson does not challenge “the manner in which [his] sentence is [being] carried out”. Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). Rather, his claim is based on an alleged error which “occurred at or prior to sentencing”; therefore, he was required to pursue his challenge in a motion under § 2255, instead of § 2241, unless he satisfies § 2255’s savings clause. Id. (citation omitted). Where petitioner improperly pursues his challenge in a § 2241 motion, the savings clause permits review where he “establishes that the remedy provided for under section 2255 is inadequate or ineffective”. Id.; see § 2255(e) (savings clause). Our court has held the remedy provided under § 2255 is inadequate or ineffective when petitioner’s challenge is, inter alia, “based on a retroactively applicable Supreme Court decision which establishes [he] may have been convicted of a nonexistent offense”. Reyes- Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Thompson’s contention “that he is actually innocent of being a career offender . . . is not the type of argument that courts have recognized may warrant review under § 2241” because he “makes no assertion that he is innocent of the crime for which he was convicted”. Kinder v. Purdy, 222 F.3d

2 Case: 20-40593 Document: 00516684480 Page: 3 Date Filed: 03/21/2023

209, 213–14 (5th Cir. 2000) (emphasis added). Accordingly, he fails to meet his burden of showing § 2255 “is inadequate or ineffective to test the legality of his detention”. § 2255(e). He additionally contends our court should join the fourth circuit in expanding § 2255(e)’s savings clause to encompass sentencing errors. See generally United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Our court recently declined to “revisit the issues decided in Reyes-Requena”. Hammoud v. Ma’at, 49 F.4th 874, 882–83 (5th Cir. 2022) (en banc). Therefore, Reyes- Requena—and Kinder—continue to govern the application of § 2255(e) in this circuit. AFFIRMED.