IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40615
Summary Calendar
JAMES ALEX MINNIFIELD,
Petitioner-Appellant,
versus
JONATHAN DOBRE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-253
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September 26, 2001
Before DAVIS, DUHÉ, and DENNIS, Circuit Judges.
PER CURIAM:1
James Alex Minnifield, federal prisoner # 43482-078, appeals
the district court’s denial of his 28 U.S.C. § 2241 petition.
Minnifield argues that his convictions for possession of an
unregistered weapon and using or carrying a firearm during and in
relation to a drug-trafficking offense should be vacated because
the jury instructions given for these counts were unconstitutional
under Staples v. United States, 511 U.S. 600 (1994), and Bailey v.
United States, 516 U.S. 137 (1995). He contends that his claims
fall within the savings clause in 28 U.S.C. § 2255, and he argues
1
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that this opinion should not be published and is not precedent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.
for the first time on appeal that review is necessary to prevent a
fundamental miscarriage of justice.
“[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.” Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). Minnifield filed a 28
U.S.C. § 2255 motion on June 5, 1996, after Bailey and Staples were
decided. Therefore, his present petition does not fall within the
savings clause because he has not shown that these claims were
foreclosed by circuit law when he filed his 28 U.S.C. § 2255
motion.
AFFIRMED.
2