Case: 14-41345 Document: 00513237293 Page: 1 Date Filed: 10/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-41345 FILED
Summary Calendar October 19, 2015
Lyle W. Cayce
Clerk
VAUDA VIRGLE SHIPP, JR.,
Petitioner-Appellant
v.
FRANK LARA, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:14-CV-308
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Vauda Virgle Shipp, Jr., federal prisoner # 09724-062, appeals the
district court’s denial of his petition for habeas corpus relief pursuant to 28
U.S.C. § 2241. The district court determined that Shipp could not pursue relief
under § 2241 because he failed to show that relief under 28 U.S.C. § 2255 would
be inadequate or ineffective, as is required by the savings clause of § 2255.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41345
We review the dismissal of a § 2241 petition de novo. Kinder v. Purdy,
222 F.3d 209, 212 (5th Cir. 2000). A federal prisoner may attack the validity
of his conviction in a § 2241 petition if he can meet the requirements of the
savings clause of § 2255. Id. The prisoner must make the showing 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). A petitioner’s inability to meet the procedural requirements of
§ 2255 is insufficient to make the required showing. Pack v. Yusuff, 218 F.3d
451, 452-53 (5th Cir. 2000). Rather, a prisoner who wishes to proceed under
the savings clause must establish that his claim “is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense” and that the claim “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, 243
F.3d at 904.
Shipp argues that he was convicted of a nonexistent offense because
Williams v. Texas, 505 S.W.2d 838 (Tex. Crim. App. 1975) and Descamps v.
United States, 133 S. Ct. 2276 (2013), invalidated one of the convictions
supporting his Armed Career Criminal Act enhancement. He also states that
his claim is based on Chambers v. United States, 555 U.S. 122 (2009), which he
argues is a retroactively applicable Supreme Court case. As Descamps and
Chambers address sentencing issues and have no effect on whether the facts
of Shipp’s case would support his conviction for the substantive offense, they
are not retroactively applicable Supreme Court decisions indicating that he
was convicted of a nonexistent offense. See Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002); In re Bradford, 660 F.3d 226,
230 (5th Cir. 2011). Additionally, Shipp’s reliance on Williams is misplaced as
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No. 14-41345
it is not a Supreme Court decision. Accordingly, the judgment of the district
court is AFFIRMED. Shipp’s motion for the appointment of counsel and
motion for remand are DENIED, and Shipp’s motion for leave to file a
supplemental brief is GRANTED.
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