IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30853
Summary Calendar
WAYNE THOMAS DOWDY,
Petitioner-Appellant,
versus
WARDEN UNITED STATES PENITENTIARY POLLOCK,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-1134
February 7, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Wayne Thomas Dowdy, federal prisoner #39311-019, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. Dowdy
has also filed a motion to supplement the record with an affidavit
not presented to the district court. That motion is DENIED.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this opinion should not be published and is not precedent except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.
1
United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1986)
(“We will not ordinarily enlarge the record on appeal to include
material not before the district court.”).
A § 2241 petition such as Dowdy’s which attacks custody
resulting from a federally imposed sentence may only be entertained
if the petitioner satisfies the requirements of the “savings
clause” of § 2255.2 That clause provides:
An application for a writ of habeas corpus in behalf of
a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be entertained
if it appears that the applicant has failed to apply for
relief, by motion, to the court which sentenced him, or
that such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.3
The prisoner bears the burden of coming forward with evidence
demonstrating the inadequacy or ineffectiveness of a § 2255
motion.4
Two factors must be satisfied for a petitioner to file a §
2241 petition in connection with the § 2255 savings clause.
“First, the petitioner’s claim must be ‘based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense.”5
Second, the claim must have been “foreclosed by circuit law at the
time when the claim should have been raised in the petitioner’s
2
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
3
28 U.S.C. § 2255.
4
Jeffers, 253 F.3d at 830.
5
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
2
trial, appeal, or first § 2255 motion.”6 Although Dowdy contends
that the actual innocence requirement has the effect of suspending
the writ of habeas corpus, we have previously rejected this
argument.7
Citing Alabama v. Bozeman, Dowdy argues that the district
court in Georgia lacked jurisdiction over his criminal prosecution
due to a violation of the Interstate Agreement on Detainers (IAD).8
Dowdy asserts that his remedy under § 2255 was inadequate because
the trial court refused to address his substantive claims relating
to the alleged IAD violation. However, as conceded by Dowdy in his
6
Id.
7
Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343 (5th
Cir. 2002). In Wesson, the court explained:
Wesson argues that the Reyes-Requena test, which requires
a showing of actual innocence in order to invoke the
savings clause of § 2255, impermissibly denies him his
constitutional right to file a habeas petition. In his
view, the savings clause of § 2255 provides a means to
petition the courts for the issuance of the “Great Writ”
when § 2255 is inadequate or unavailable. He thus argues
that he may proceed by virtue of the savings clause of §
2255 simply because § 2255 is not available to him,
without regard to his actual innocence....
Wesson’s argument is without merit. This court must
apply the Reyes-Requena actual innocence test as the
binding precedent in this circuit, and the district court
correctly relied upon Reyes-Requena in its evaluation of
whether Wesson should be able to proceed under the
savings clause of § 2255. Moreover, this court has held
that the savings clause under § 2255 does not violate the
Suspension Clause.
Id. at 346-47.
8
533 U.S. 146 (2001).
3
§ 2241 petition, Bozeman is neither retroactive to cases on
collateral review nor establishes that he was convicted of a
nonexistent offense. Accordingly, Dowdy’s alleged IAD violation
argument fails to satisfy the first prerequisite to application of
the savings clause. The district court’s dismissal of Dowdy’s §
2241 petition is therefore AFFIRMED.
4