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James Niblock v. Mike Pearce ( 2015 )


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  •      Case: 15-50074      Document: 00513316635         Page: 1    Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-50074                          December 21, 2015
Summary Calendar
Lyle W. Cayce
Clerk
JAMES RAYMOND NIBLOCK,
Plaintiff-Appellant
v.
MIKE PEARCE, Warden FCI Bastrop,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:14-CV-479
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
James Raymond Niblock, federal prisoner # 45816-083, appeals the
district court’s dismissal of his
    28 U.S.C. § 2241
     petition for lack of jurisdiction.
Niblock argues that the Fourth Circuit’s ruling in United States v. Jefferson,
    674 F.3d 332
     (4th Cir. 2012), provides grounds to reverse his conviction for six
counts of wire fraud. Niblock argues that his claim was based on a change in
circuit law and should be permitted under the savings clause. He further
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50074
contends that the district court erred in denying his motion for an evidentiary
hearing.
Under § 2241, we review findings of fact for clear error and conclusions
of law de novo.    Christopher v. Miles,
    342 F.3d 378
    , 381 (5th Cir. 2003).
Because Niblock’s § 2241 claims attacked the validity of his conviction and
sentence, the district court did not err in determining that the claims would be
properly brought in a § 2255 motion. See Pack v. Yusuff,
    218 F.3d 448
    , 451
(5th Cir. 2000).
A petitioner can attack the validity of his conviction and sentence in a
§ 2241 petition only if he can meet the requirements of the savings clause of
    28 U.S.C. § 2255
    (e). Kinder v. Purdy,
    222 F.3d 209
    , 212 (5th Cir. 2000). The
petitioner shoulders the burden of affirmatively 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 the extent that Niblock seeks this court to overturn the holding
in Reyes-Requena, Niblock’s argument fails. In the absence of an en banc
decision by this court or an intervening Supreme Court decision, this court is
bound by its own precedent. See United States v. Traxler,
    764 F.3d 486
    , 489
(5th Cir. 2014).
Niblock 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.” See Reyes-Requena,
    243 F.3d at 904
    . Thus,
he has not shown that he is entitled to proceed under the savings clause of
§ 2255. See § 2255(e); Reyes-Requena,
    243 F.3d at 904
    . To the extent Niblock
raises a claim of actual innocence, his argument is unavailing. See McQuiggin
v. Perkins,
    133 S. Ct. 1924
    , 1928 (2013); Foster v. Quarterman,
    466 F.3d 359
    ,
367-68 (5th Cir. 2006). Because Niblock is unable to obtain relief on his claim,
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No. 15-50074
the district court did not abuse its discretion by refusing to hold an evidentiary
hearing. See Ellis v. Lynaugh,
    873 F.2d 830
    , 840 (5th Cir. 1989).
The judgment of the district court is AFFIRMED.
3