Case: 11-10431 Document: 00511670535 Page: 1 Date Filed: 11/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2011
No. 11-10431
Summary Calendar Lyle W. Cayce
Clerk
JEROME F. DEERING BEY,
Petitioner-Appellant
v.
REBECCA TAMEZ, Warden-FCI Fort Worth,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CV-827
Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
Jerome F. Deering Bey, federal prisoner # 38149-019, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. He
argues that he warrants application of the 28 U.S.C. § 2255 savings clause
because the Fair Sentencing Act of 2010 (FSA) renders him actually innocent of
his crimes of conviction, his conviction constitutes a manifest miscarriage of
justice, and failure to apply the FSA to his conviction violates the Equal
Protection Clause.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-10431 Document: 00511670535 Page: 2 Date Filed: 11/18/2011
No. 11-10431
As Bey challenges the legality of his sentence, rather than the manner in
which it is being executed, the district court did not err in concluding that his
claim arises under § 2255. See Padilla v. United States, 416 F.3d 424, 425-26
(5th Cir. 2005). Because he has not shown that his claim “is based on a
retroactively applicable Supreme Court decision which establishes that [he] may
have been convicted of a nonexistent offense,” Bey has not shown that he is
entitled to proceed under the savings clause of § 2255. See Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001). Accordingly, the judgment of
the district court is AFFIRMED. The Respondent’s motion for summary
affirmance is GRANTED, and its alternative motion for an extension of time in
which to file a brief is DENIED.
2