Dwayne Smith v. T. Werlich, Warden ( 2016 )

Case: 15-30585 Document: 00513517691 Page: 1 Date Filed: 05/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30585
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 23, 2016
DWAYNE HAROLD SMITH,
Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
T.G. WERLICH, Warden, Federal Correctional Institution Pollock Medium,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:15-CV-515
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Dwayne Harold Smith, federal inmate # 20375-009, was convicted in the
Eastern District of Arkansas after a jury found him guilty of traveling in
interstate commerce with intent to commit murder for hire, in violation of 18
U.S.C. § 1958(a). He was sentenced to life in prison. He filed a petition under
28 U.S.C. § 2241 in the United States District Court for the Western District
of Louisiana, where he is incarcerated. The district court construed the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30585 Document: 00513517691 Page: 2 Date Filed: 05/23/2016
No. 15-30585
petition as a 28 U.S.C. § 2255 motion and dismissed it for want of jurisdiction.
Smith challenges the dismissal.
Smith contends that under Rosemond v. United States, 134 S. Ct. 1240
(2014), which set forth the Government’s burden of proof with respect to the
mens rea to convict under 18 U.S.C. § 2 for aiding and abetting an 18 U.S.C.
§ 924(c) offense, he was convicted of a nonexistent offense. To the extent that
§ 2255 is reserved for questions of constitutional magnitude, and Smith’s claim
goes to statutory interpretation, his claim is arguably not cognizable under
§ 2255. See Reyes-Requena v. United States, 243 F.3d 893, 900-01 (5th Cir.
2001). Smith has not shown, however, that his claim could be brought in a
§ 2241 petition under the savings clause of § 2255(e) because, even if Rosemond
applies retroactively, he has not established his claim was foreclosed
previously. The law in the Eighth Circuit, the circuit in which he was
convicted, was consistent with Rosemond and, in fact, was cited in Rosemond.
134 S. Ct. at 1249 (citing United States v. Akiti, 701 F.3d 883, 887 (8th Cir.
2012)).
Furthermore, Smith has not shown that under Rosemond he was
convicted of a nonexistent offense given that he was not convicted under § 2,
and he has not cited authority applying Rosemond to an offense under
§ 1958(a). Thus, he does not make the requisite showing that he was convicted
for conduct that did not constitute a crime. See Jeffers, 253 F.3d at 831. Given
that Rosemond is inapposite, he otherwise fails to show that § 2255 is
unavailable or ineffective to challenge the legality of his conviction and
sentence.
Accordingly, the petition was properly dismissed because the district
court lacked jurisdiction over the § 2255 motion, which could be filed, if at all,
in the district where Smith was sentenced. See Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000).
AFFIRMED.
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