Case: 11-30649 Document: 00511716978 Page: 1 Date Filed: 01/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2012
No. 11-30649
Summary Calendar Lyle W. Cayce
Clerk
JOHNNY TORRES,
Petitioner - Appellant
v.
JOSEPH P. YOUNG,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:10-CV-845
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, Johnny Torres, federal prisoner
# 51425-019, appeals the dismissal, for lack of jurisdiction, of his 28 U.S.C.
§ 2241 petition. Torres was sentenced to 360-months’ imprisonment following
his 2001 convictions for: conspiracy to possess, with intent to distribute, five
kilograms or more of cocaine; and, possession of cocaine, with intent to
distribute. He contends the vacatur of two of his prior convictions should reduce
his criminal-history category and, thus, his Guidelines sentencing range.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30649 Document: 00511716978 Page: 2 Date Filed: 01/06/2012
No. 11-30649
In reviewing denial of habeas relief, questions of law are reviewed de novo.
E.g., Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). The primary means
of collaterally attacking a federal conviction and sentence is provided by 28
U.S.C. § 2255. E.g., Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2241 generally is used to attack the manner in which a sentence is executed. Id.
Nevertheless, a § 2241 petition attacking a federal conviction or sentence may
be considered if petitioner shows the remedy under § 2255 is “inadequate or
ineffective”. Id. at 878. See also 28 U.S.C. § 2255(e) (“An application for a writ
of habeas corpus . . . 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.”)
(“savings clause”). The remedy under § 2255 is inadequate or ineffective when:
a retroactively applicable Supreme Court decision shows petitioner may have
been convicted of a nonexistent offense; and that claim was foreclosed by law at
the time it should have been raised in petitioner’s trial, appeal, or first § 2255
motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Neither a prior unsuccessful § 2255 motion, as in this instance, nor an inability
to meet the requirements for pursuing a successive § 2255 motion renders the
§ 2255 remedy unavailable. Tolliver, 211 F.3d at 878.
Torres contends his claim is cognizable in a § 2241 petition because he is
a victim of a miscarriage of justice and is actually innocent of prior offenses that
were used in determining his criminal history for sentencing. As Torres
challenges only his sentence and not his conviction, his claim does not fall within
the savings clause of 28 U.S.C. § 2255(e), and it is not cognizable in a § 2241
petition. E.g., Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005).
AFFIRMED.
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