IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 11, 2007
No. 07-10028
Conference Calendar Charles R. Fulbruge III
Clerk
JOHN CORNELIUS FOWLER
Petitioner-Appellant
v.
COLE JETER, Warden Federal Correctional Institution - Fort Worth
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-610
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
John Cornelius Fowler, federal prisoner # 04841-043, appeals the district
court’s dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition, in which
he challenged his convictions for possession with the intent to distribute crack
cocaine and carrying a firearm in relation to the drug offense. Fowler argues
that the district court erred in construing his § 2241 petition as a 28 U.S.C.
§ 2255 motion and that his claims fall within 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should not be published and is not precedent except under the limited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.
No. 07-10028
because Zedner v. United States, 126 S. Ct. 1976 (2006), should apply
retroactively to cases on collateral review; because he is actually innocent of
possessing crack rather than powder cocaine; and because his claim was
foreclosed at the time of his trial and direct appeal.
A § 2241 petition attacking custody resulting from a federally imposed
sentence may be considered only where the petitioner establishes that § 2255 is
“inadequate or ineffective to test the legality of his detention.” § 2255; Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). To show that § 2255 was rendered
inadequate or ineffective in his case, Fowler must show that his claim (1) “is
based on a retroactively applicable Supreme Court decision which establishes
that the petitioner may have been convicted of a nonexistent offense” and (2)
“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).
Zedner dealt with issues relating to the Speedy Trial Act. 126 S. Ct. at
1985-90. Because Zedner does not establish that Fowler was convicted of a
nonexistent offense, we need not determine whether Zedner is retroactive or
whether Fowler’s claim was foreclosed when he filed his prior § 2255 motion or
direct appeal. Fowler has not met the requirements for proceeding under the
savings clause. The judgment of the district court dismissing Fowler’s petition
for lack of jurisdiction is AFFIRMED.
2