McKathan v. Treadway ( 2023 )

Case: 22-60423 Document: 00516635047 Page: 1 Date Filed: 02/03/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-60423 February 3, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Denzil Earl McKathan,
Petitioner—Appellant,
versus
R. Treadway, Acting Warden Yazoo City (Low),
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:22-CV-246
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Denzil Earl McKathan, federal prisoner # 09015-003, appeals the
dismissal, for lack of jurisdiction, of his 28 U.S.C. § 2241 petition challenging
the legality of his 188-month sentence for possession and receipt of child
pornography. The district court determined that McKathan could not
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60423 Document: 00516635047 Page: 2 Date Filed: 02/03/2023
No. 22-60423
challenge his sentence under § 2241 because he failed to satisfy the “savings
clause” of 28 U.S.C. § 2255(e).
A § 2241 petition is the proper procedural vehicle for challenging the
conditions of a prisoner’s confinement, while a § 2255 motion is the primary
vehicle for collaterally attacking a federal sentence. Reyes-Requena v. United
States, 243 F.3d 893, 900-01 (5th Cir. 2001). But a prisoner may challenge
the basis of his federal custody in a § 2241 petition if he shows that the
remedy under § 2255 is inadequate or ineffective to test the legality of his
detention. § 2255(e); Reyes-Requena, 243 F.3d at 901. To make that showing,
a prisoner must present a claim “(i) that is based on a retroactively applicable
Supreme Court decision which establishes that [he] may have been convicted
of a nonexistent offense and (ii) that 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.” Id. at 904.
The district court correctly found that McKathan failed to identify a
retroactively applicable Supreme Court decision establishing his innocence
or, further, that he could not have brought his arguments at the time he filed
his initial § 2255 motion. McKathan’s contention that he is not challenging
his conviction is meritless as his request for release is premised on his
contention that his conviction and resultant sentence was invalid because of
an alleged immunity agreement. That McKathan is challenging his
conviction rather than just his incarceration is clear by inference: the reason
he gives for why he should be released is that the conviction was improperly
obtained. Accordingly, McKathan fails to show that the district court erred
by dismissing his § 2241 petition for lack of jurisdiction. See Pack v. Yusuff,
218 F.3d 448, 451-52 (5th Cir. 2000) (“A section 2241 petition that seeks to
challenge the validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.”). AFFIRMED.
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