Case: 16-30729 Document: 00513895129 Page: 1 Date Filed: 03/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30729 FILED
Summary Calendar March 2, 2017
Lyle W. Cayce
Clerk
DWAYNE ERIC REED,
Petitioner-Appellant
v.
REBECCA CLAY, Warden, Federal Correctional Institution Oakdale,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:15-CV-2368
Before JONES, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Petitioner Dwayne Eric Reed, federal prisoner # 03174-089, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his bank
robbery conviction in the Eastern District of Wisconsin. In his § 2241 petition,
Reed raised claims that his rights under the Confrontation Clause were
violated at his trial and that his trial counsel was ineffective. He also claimed
that he was actually innocent of the offense.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30729
On appeal, Reed maintains that the district court erred by requiring him
to satisfy the savings clause of 28 U.S.C. § 2255(e). He also further contends
that his Confrontation Clause claim based on Crawford v. Washington, 541
U.S. 36 (2004), meets the requirements of the savings clause. We review de
novo the dismissal of a § 2241 petition. Kinder v. Purdy, 222 F.3d 209, 212
(5th Cir. 2000).
“A section 2241 petition that seeks to challenge the validity of a federal
sentence must either be dismissed or construed as a section 2255 motion.”
Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). However, a § 2241 petition
that attacks custody resulting from a federally imposed sentence may be
entertained under the savings clause of § 2255 if the petitioner establishes that
the remedy provided under § 2255 is “inadequate or ineffective” to test the
legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
To make the showing required to proceed under the savings clause, Reed must
establish that his claim is “(i) . . . based on a retroactively applicable Supreme
Court decision which establishes that [he] . . . 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 [his] . . . trial, appeal, or first § 2255
motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
This showing “requires that a retroactively applicable Supreme Court decision
establish that the petitioner is actually innocent,” meaning that he “may have
been imprisoned for conduct that was not prohibited by law.” Jeffers
v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001) (internal quotation marks
and citation omitted).
The rule announced in Crawford is not retroactive to cases on collateral
review. See Lave v. Dretke, 444 F.3d 333, 334-36 (5th Cir. 2006). Moreover,
even if a hearsay statement was introduced at Reed’s trial in violation of the
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No. 16-30729
rule announced in Crawford, or if Reed’s trial counsel was ineffective as
claimed, neither would establish that Reed “may have been convicted of a
nonexistent offense.” Reyes-Requena, 243 F.3d at 904. He therefore fails to
establish that these claims satisfy the savings clause. See id. Nor has Reed
shown that his claim of actual innocence provides an exception to the
requirement that a petitioner first satisfy the savings clause of § 2255(e) to
challenge his conviction and sentence in a § 2241 petition.
Reed’s contention that the district court erred by dismissing his claims
for lack of jurisdiction, and that it instead should have transferred his petition
to a court of proper jurisdiction, lacks merit. “[A] federal court always has
jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S.
622, 628 (2002). Here, the district court for the Western District of Louisiana
had no jurisdiction to consider Reed’s claims attacking his conviction under
§ 2255 because it was not the sentencing court. See Pack, 218 F.3d at 452.
Neither was the district court required to transfer the petition to a court of
appropriate jurisdiction. See § 2241(b). To the extent that Reed is asserting
that the district court should have transferred his petition in the interest of
justice, pursuant to 28 U.S.C. § 1631, he has provided nothing to support a
determination that a transfer instead of a dismissal would have served the
interests of justice. Finally, to the extent that Reed asserts that he should have
been given an opportunity to amend the § 2241 petition, the district court did
not err because any amendment of the petition would have been futile. See
Marucci Sports, LLC v. NCAA, 751 F.3d 368, 378 (5th Cir. 2014).
AFFIRMED.
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