Case: 15-30168 Document: 00513188014 Page: 1 Date Filed: 09/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30168
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 10, 2015
DORIAN J. FRANCIS,
Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent -Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CV-2308
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Dorian J. Francis, federal prisoner # 27103-034, is serving a 177-month
sentence for bank robbery and using, carrying, and discharging a firearm
during a crime of violence. Francis filed a 28 U.S.C. § 2241 petition arguing
that he was entitled to resentencing because the indictment failed to notify
him of the Government’s intent to seek an enhancement pursuant to 18 U.S.C.
§ 924(c)(1)(A)(iii). He further argued that his sentence violated the Double
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-30168
Jeopardy Clause and that he was actually innocent. The district court denied
Francis’s § 2241 petition because he failed to satisfy the requirements of the
savings clause of 28 U.S.C. § 2255(e).
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 occur[red] at trial or sentencing is properly construed under
§ 2255.” Id. at 877-78. Francis is challenging alleged errors that happened at
trial and sentencing. As such, Francis’s claims 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). To make this showing, Francis must make a claim
(i) “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.
Francis has not shown that he is entitled to proceed under § 2241 based
on the savings clause of § 2255(e). See Reyes-Requena, 243 F.3d at 904; Wesson
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No. 15-30168
v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002).
Accordingly, the judgment of the district court is AFFIRMED.
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