Case: 12-10069 Document: 00511958705 Page: 1 Date Filed: 08/15/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 16, 2012
No. 12-10069
Summary Calendar Lyle W. Cayce
Clerk
BRENDA LEE FORD,
Petitioner-Appellant
v.
JOE KEFFER, Warden, FMC-Carswell,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CV-718
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Brenda Lee Ford, federal prisoner # 26255-077, currently is serving a
prison sentence for a 1995 conviction for conspiracy to possess with intent to
distribute cocaine and possession with intent to distribute cocaine. Ford filed a
petition under 28 U.S.C. § 2241 arguing that the evidence regarding the actual
substance involved in her offenses was insufficient in light of DePierre v. United
States, 131 S. Ct. 2225 (2011), and that the district court erred in applying the
career offender provisions of the Sentencing Guidelines under the recent decision
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10069 Document: 00511958705 Page: 2 Date Filed: 08/15/2012
No. 12-10069
in Johnson v. United States, 130 S. Ct. 1265 (2010). The district court dismissed
Ford’s § 2241 petition because she did not meet the requirements for proceeding
under the savings clause of 28 U.S.C. § 2255 as set forth in Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001). The Respondent has moved for
summary affirmance or, in the alternative, for a dismissal as frivolous or for an
extension of time to file a brief.
Ford’s argument that her DePierre claim is cognizable in a § 2241 petition
is without merit because DePierre did not decriminalize her criminal conduct
and has not been held to be retroactively applicable. Ford’s Johnson argument
that her actual innocence claim is cognizable in a § 2241 petition is foreclosed by
Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000), which held that a
petitioner’s argument that he is actually innocent of being a career offender is
not the type of argument that warrants review under § 2241 because the
petitioner is not asserting that he is actually innocent of the underlying crime
for which she was convicted.
The Respondent’s motion for summary affirmance is GRANTED; its
alternative motions for dismissal as frivolous and for an extension of time to file
a brief are DENIED, and the judgment of the district court is AFFIRMED.
2