Case: 10-10120 Document: 00511331152 Page: 1 Date Filed: 12/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2010
No. 10-10120
Summary Calendar Lyle W. Cayce
Clerk
WILLIE FRANK KING,
Petitioner-Appellant
v.
WARDEN REBECCA TAMEZ,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-564
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Willie Frank King, federal prisoner # 29510-077, appeals the district
court’s denial of his 21 U.S.C. § 2241 petition, challenging his convictions for
several drug-related crimes and resulting 328-month sentence. In his petition,
King alleged that he was denied his counsel of choice, in violation of his Sixth
Amendment rights as articulated in United States v. Gonzalez-Lopez, 548 U.S.
140 (2006). King argues that the district court erred in determining that he had
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10120 Document: 00511331152 Page: 2 Date Filed: 12/23/2010
No. 10-10120
not met the requirements for proceeding under § 2241 pursuant to the savings
clause of 28 U.S.C. § 2255(e).
To challenge the validity of his conviction and sentence through a § 2241
petition, King must affirmatively show that the remedy under § 2255 would be
“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). This requires
him to make a showing of both actual innocence and retroactivity.
Reyes-Requena, 243 F.3d at 903-04. Specifically, he must establish that his
claim (1) “is based on a retroactively applicable Supreme Court decision which
establishes that [he] may have been convicted of a nonexistent offense” and
(2) “was foreclosed by circuit law at the time when the claim should have been
raised in [his] trial, appeal, or first § 2255 motion.” Id. at 904.
King devotes his brief to the argument that Gonzalez-Lopez should apply
retroactively to cases on collateral review. He makes no argument that he is
actually innocent. Moreover, Gonzalez-Lopez does not establish that his
convictions are for nonexistent offenses. See 548 U.S. at 151-52. Therefore, we
do not reach the question whether Gonzalez-Lopez is retroactively applicable to
cases on collateral review because King cannot meet his burden regardless. See
Reyes-Requena, 243 F.3d at 904. The district court’s judgment is AFFIRMED.
See § 2255(h); 28 U.S.C. § 2244(b)(3)(C); Reyes-Requena, 243 F.3d at 897-98.
King is CAUTIONED that future attempts to circumvent the successive-motion
requirements of § 2255 will invite the imposition of sanctions.
2