Jermaine Surtain v. J. Barnhart

Case: 16-30894 Document: 00514174712 Page: 1 Date Filed: 09/28/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30894 FILED
Summary Calendar September 28, 2017
Lyle W. Cayce
Clerk
JERMAINE SURTAIN,

Petitioner-Appellant

J. A. BARNHART, Warden, Federal Correctional Institution Pollock,

Respondent-Appellee

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:16-CV-663

Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
Jermaine Surtain, federal prisoner # 27627-034, was convicted of
conspiracy to commit mail and wire fraud and aiding and abetting the use of
fire to commit obstruction of justice. He appeals the district court’s denial and
dismissal of his 28 U.S.C. § 2241 petition, which relied on the Supreme Court’s
decision in Rosemond v. United States, 134 S. Ct. 1240 (2014).

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30894 Document: 00514174712 Page: 2 Date Filed: 09/28/2017

No. 16-30894

The dismissal of a § 2241 petition is reviewed de novo. Pack v. Yusuff,
218 F.3d 448, 451 (5th Cir. 2000). A § 2241 petition that attacks a federal
sentence may be considered under the “savings clause” if the petitioner shows
that 28 U.S.C. § 2255 is “inadequate or ineffective to test the legality of his
detention.” § 2255(e). The petitioner must show that his claim is “based on a
retroactively applicable Supreme Court decision which establishes that
petitioner may have been convicted of a nonexistent offense” and that his claim
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).
In Rosemond, the Supreme Court held that, to prove that the defendant
aided and abetted a firearms violation under 18 U.S.C. § 924(c), the
Government must show that the defendant had “advance knowledge” of the
firearm. Assuming without deciding that Rosemond applies retroactively to
cases outside the § 924(c) context, we conclude that Surtain has not shown that
he was convicted of a nonexistent offense. We found on direct appeal that there
was sufficient evidence for the jury to find that Surtain knew of his co-
defendant’s plan to burn a vehicle that had been used in the commission of
other crimes. See United States v. Surtain, 519 F. App’x 266, 278 (5th Cir.
2013). Because Surtain has failed to show he was convicted of a nonexistent
offense, he has failed to meet the requirements of the savings clause.
AFFIRMED.