Laureano Rivera v. Bonita Mosley

Case: 15-60071 Document: 00513302571 Page: 1 Date Filed: 12/10/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60071 FILED
Summary Calendar December 10, 2015
Lyle W. Cayce
Clerk
LAUREANO CHIRINO RIVERA,

Petitioner-Appellant

WARDEN BONITA S. MOSLEY,

Respondent-Appellee

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:14-CV-935

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Laureano Chirino Rivera, federal prisoner # 79091-004, appeals the
district court’s denial of his habeas corpus petition pursuant to 28 U.S.C.
§ 2241. The district court determined that Rivera’s claims attacked the
validity of his convictions and sentences for conspiracy to commit robbery and
conspiracy to carry a firearm during a crime of violence, which were imposed
in the Southern District of Florida. The district court determined that Rivera

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60071 Document: 00513302571 Page: 2 Date Filed: 12/10/2015

No. 15-60071

could not pursue relief under § 2241 because he failed to show that the remedy
under 28 U.S.C. § 2255 would be inadequate or ineffective, as is required by
the savings clause of § 2255(e). We review the dismissal of a § 2241 petition
de novo. Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000).
A petition for a writ of habeas corpus filed under § 2241 and a motion to
vacate, set aside, or correct a sentence filed under § 2255 are “distinct
mechanisms for seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000). Section 2255 provides the primary means of collaterally
attacking a federal conviction and sentence. Tolliver v. Dobre, 211 F.3d 876,
877 (5th Cir. 2000). Section 2241 is generally used to attack the manner in
which a sentence is executed. Id. A petition filed under § 2241 attacking errors
that occurred at trial or sentencing should be construed as a § 2255 motion.
See id. at 877-78.
The district court correctly determined that the claims raised in Rivera’s
§ 2241 petition challenged his underlying convictions and sentences rather
than the manner in which his sentences are being executed. Because Rivera’s
claims arise under § 2255, he may bring them in a § 2241 petition only if he
can meet the requirements of § 2255’s savings clause by showing that the
remedy under § 2255 would be “inadequate or ineffective to test the legality of
his detention.” § 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901
(5th Cir. 2001). To make such a showing, he must establish that his claims are
“based on a retroactively applicable Supreme Court decision which establishes
that the petitioner may have been convicted of a nonexistent offense” and that
the claims were “foreclosed by circuit law at the time when the claim[s] should
have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-
Requena, 343 F.3d at 904.

2
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No. 15-60071

In his appellate brief, Rivera renews several claims set forth in his § 2241
petition, but he makes no attempt to establish that his claims meet the
requirements of the savings clause. He has failed to show error in the district
court’s dismissal of his § 2241 petition. Accordingly, the judgment of the
district court is AFFIRMED.
Rivera has now filed a total of four unmeritorious § 2241 petitions
attacking the same convictions and sentences. He has also, on at least three
occasions, sought authorization to file a successive § 2255 motion. He is hereby
WARNED that filing frivolous or repetitive challenges to these convictions or
sentence in this court or in any court subject to the jurisdiction of this court
will invite the imposition of sanctions. Rivera is DIRECTED to review any
pending matters to ensure that they are not frivolous or repetitive.