Case: 10-60700 Document: 00511476960 Page: 1 Date Filed: 05/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2011
No. 10-60700
Summary Calendar Lyle W. Cayce
Clerk
JOHN ALVIN PAYNE,
Petitioner-Appellant
v.
BRUCE PEARSON, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:10-CV-117
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
John Alvin Payne, federal prisoner # 85849-012, is serving a 50-year
sentence for a conviction under the continuing criminal enterprise statute; four
counts of distribution of cocaine; and three counts of structuring financial
transactions to evade income reporting requirements. Payne filed a 28 U.S.C.
§ 2241 petition arguing that his counsel was ineffective for failing to argue “that
fronting drugs [does] not constitute [a] managerial relationship for a conviction”
under the continuing criminal enterprise statute. The district court determined
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60700 Document: 00511476960 Page: 2 Date Filed: 05/13/2011
No. 10-60700
that Payne could not proceed under § 2241 because his claim did not satisfy the
requirements of the savings clause of 28 U.S.C. § 2255(e). The district court thus
dismissed Payne’s § 2241 petition as frivolous and to the extent it was construed
as a § 2255 motion, the district court dismissed it for lack of jurisdiction.
Section 2255 provides the main vehicle to raise a collateral challenge to a
federal sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2255 relief is hence the appropriate remedy for “error[s] that occurred at or prior
to sentencing.” Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,1113 (5th Cir.
1990) (internal quotation marks and citation omitted). In contrast, § 2241 is
properly used to raise a challenge to “the manner in which a sentence is
executed.” Tolliver, 211 F.3d at 877. A petition filed under § 2241 that raises
errors “that occurr[ed] at trial or sentencing is properly construed [as arising]
under § 2255.” Id. at 877-78. Payne is challenging alleged errors that happened
at trial. As such, Payne’s claim must be raised in a § 2255 motion. See Cox, 911
F.2d at 1113.
If a prisoner can demonstrate that the § 2255 remedy would be
“’inadequate or ineffective to test the legality of [the prisoner’s] detention,’” he
may be permitted to bring a habeas corpus claim pursuant to § 2241 under the
savings clause. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001) (quoting § 2255).
[T]he savings clause of § 2255 applies to a claim (i) that is based on
a retroactively applicable Supreme Court decision which establishes
that the petitioner 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.
Id. at 904. Payne has not shown that he is entitled to proceed under § 2241
based on the savings clause of § 2255(e). See Pack v. Yusuff, 218 F.3d 448,
452-53 (5th Cir 2000). The judgment of the district court is AFFIRMED.
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