United States v. Rocha

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11191 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN ROCHA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-2456-G USDC No. 3:89-CR-95-3-G -------------------- September 3, 2002

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

Ruben Rocha, federal prisoner # 18815-077, appeals from the

district court’s dismissal of his 28 U.S.C. § 2255 motion in

which he sought to challenge his 18 U.S.C. § 924(c) firearm

conviction in light of Bailey v. United States, 516 U.S. 137

(1995). He argues that the district court erred in not allowing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-11191 -2-

him to bring this claim pursuant to the savings clause of 28

U.S.C. § 2255.

This court had granted Rocha a certificate of appealability

on the issue whether the expiration of the limitations period to

seek relief pursuant to 28 U.S.C. § 2255 may render that section

ineffective as an avenue of relief on claims raised pursuant to

Bailey, allowing a prisoner to seek relief pursuant to 28 U.S.C.

§ 2241. However, we decline to reach that issue because the

district court’s judgment may be affirmed on other grounds.

See United States v. Flores, 135 F.3d 1000, 1002 (5th Cir. 1998).

In order to file a 28 U.S.C. § 2241 petition pursuant to the

savings clause of 28 U.S.C. § 2255, the petitioner must show that

1) his claims are based on a retroactively applicable Supreme

Court decision which establishes that the petitioner may have

been convicted of a nonexistent offense and 2) his claims were

foreclosed by circuit law at the time when the claims should have

been raised in his trial, appeal, or first 28 U.S.C. § 2255

motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th

Cir. 2001). Rocha argues that in light of Bailey, his conviction

for “use” of a firearm cannot be sustained. However, Rocha was

also indicted for and convicted of “carrying” a firearm during

and in relation to a crime of violence under 18 U.S.C. § 924(c).

This court has already held that there was sufficient evidence to

support that conviction. See United States v. Rocha, 916 F.2d

219, 236-37 (5th Cir. 1990). As Bailey had no effect on the No. 01-11191 -3-

definition of “carrying” under 18 U.S.C. § 924(c), see United

States v. Rivas, 85 F.3d 193, 195 (5th Cir. 1996), Rocha was

convicted of an offense and cannot meet the first prong of the

Reyes-Requena test. Accordingly, the district court’s judgment

denying his 28 U.S.C. § 2255 motion is AFFIRMED.