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Kenneth Jackson v. United States ( 2019 )


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  •      Case: 18-30916      Document: 00514991193         Page: 1    Date Filed: 06/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30916                          FILED
Summary Calendar                    June 11, 2019
Lyle W. Cayce
Clerk
KENNETH D. JACKSON,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:18-CV-589
Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
Kenneth D. Jackson, federal prisoner # 68790-080, appeals the district
court’s dismissal of his
    28 U.S.C. § 2241
     petition in which he attacked the 180-
month sentence imposed following his conviction for possession with intent to
distribute cocaine base. Jackson asserted that his prior conviction in Texas for
delivery of a controlled substance no longer qualified as a predicate offense for
purposes of U.S.S.G. § 4B1.1, and, therefore, he no longer qualified for a career-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-30916     Document: 00514991193      Page: 2    Date Filed: 06/11/2019
No. 18-30916
offender enhancement. The district court found that Jackson failed to satisfy
the requirements of the savings clause of
    28 U.S.C. § 2255
    (e). We review the
dismissal of Jackson’s § 2241 petition de novo. Christopher v. Miles,
    342 F.3d 378
    , 381 (5th Cir. 2003).
Jackson maintains that the district court erred by dismissing his § 2241
petition without first reviewing his objections to the magistrate judge’s report.
However, Jackson did not timely file objections, see
    28 U.S.C. § 636
    (b)(1); FED.
R. CIV. P. 72(b)(2), and has not shown that he was otherwise prejudiced by the
district court’s failure to review them. See Smith v. Collins,
    964 F.2d 483
    , 485
(5th Cir. 1992). This case did not involve factual disputes and concerned only
legal issues that the district court readily could consider. See Smith,
    964 F.2d at 485
    ; Rutledge v. Wainwright,
    625 F.2d 1200
    , 1206 (5th Cir. 1980). Moreover,
Jackson has not identified a legal claim raised in his objections that could have
altered the district court’s disposition of his petition. Thus, even if the district
court should have reviewed the objections, any error was harmless. See Smith,
    964 F.2d at 485
    .
On appeal, Jackson reurges his claim that he was wrongly sentenced as
a career offender under § 4B1.1 because his Texas conviction for delivery of a
controlled substance no longer warrants application of the enhancement. He
contends that there has been an intervening change in the law that affects the
application of the Sentencing Guidelines and the validity of his sentence. He
argues that he may file a § 2241 petition because he is unable to challenge the
application of the Guidelines in a § 2255 motion.
A prisoner may use § 2241 to challenge his conviction only if the remedy
under § 2255 is inadequate or ineffective to contest the legality of his detention.
§ 2255(e). A § 2241 petition is not a substitute for a § 2255 motion, and Jackson
must establish the inadequacy or ineffectiveness of a § 2255 motion by meeting
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Case: 18-30916    Document: 00514991193     Page: 3   Date Filed: 06/11/2019
No. 18-30916
the savings clause of § 2255. See § 2255(e); Jeffers v. Chandler,
    253 F.3d 827
    ,
830 (5th Cir. 2001); Reyes-Requena v. United States,
    243 F.3d 893
    , 904 (5th
Cir. 2001). Under that clause, Jackson must show that his petition asserts a
claim based on a retroactively applicable Supreme Court decision that supports
that he may have been convicted of a nonexistent offense and that the claim
was foreclosed when it should have been asserted in his trial, direct appeal, or
original § 2255 motion. Reyes-Requena,
    243 F.3d at 904
    .
Jackson contends only that his sentence was illegally enhanced and does
not maintain that he was convicted of a nonexistent crime or that he is actually
innocent of the offense of conviction. Challenges to the validity of a sentencing
enhancement do not satisfy the savings clause of § 2255(e). See In re Bradford,
    660 F.3d 226
    , 230 (5th Cir. 2011); Padilla v. United States,
    416 F.3d 424
    , 426-
27 (5th Cir. 2005); Kinder v. Purdy,
    222 F.3d 209
    , 213-14 (5th Cir. 2000). He
otherwise has not cited a retroactively applicable Supreme Court decision that
addresses whether he was convicted of conduct that is not a crime. See Padilla,
    416 F.3d at 425-26
    ; Reyes-Requena,
    243 F.3d at 904
    . Thus, Jackson has failed
to show that the district court erred in dismissing his § 2241 petition for lack
of jurisdiction.
The judgment of the district court is therefore AFFIRMED.
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