Alfred Cheese, III v. Frank Lara, Warden , 653 F. App'x 828 ( 2016 )

Case: 15-40703 Document: 00513516990 Page: 1 Date Filed: 05/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-40703 May 23, 2016
Summary Calendar
Lyle W. Cayce
Clerk
ALFRED CHEESE, III,
Petitioner–Appellant,
v.
WARDEN FRANK LARA,
Respondent–Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:14-CV-296
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Alfred Cheese, III, federal prisoner # 33175-037, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition, which
challenged his statutorily-enhanced life sentences for conspiracy to distribute
a controlled substance and unlawful possession of a firearm by a felon. Cheese
invoked Descamps v. United States, 133 S. Ct. 2276 (2013), Alleyne v. United
States, 133 S. Ct. 2151 (2013), Begay v. United States, 553 U.S. 137 (2008),
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40703 Document: 00513516990 Page: 2 Date Filed: 05/23/2016
No. 15-40703
United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530
U.S. 466 (2000). He also argued that he was actually innocent of murder
conduct used to calculate his guideline range and that the denial of a sentence
modification or reduction violated his right to equal protection.
On appeal, Cheese challenges the dismissal of his Alleyne, Begay, and
Descamps claims. Our review is de novo. Kinder v. Purdy, 222 F.3d 209, 212
(5th Cir. 2000) (per curiam). The district court determined that the claims
should be presented in a 28 U.S.C. § 2255 motion and did not fit within the
savings clause of § 2255(e) because they challenged the validity of Cheese’s
enhanced sentences, not his conviction. We agree, having previously held that
the savings clause only applies to § 2241 claims that, among other things, are
based on a retroactively applicable Supreme Court decision which establishes
that the petitioner “may have been convicted of a nonexistent offense.” Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001); see Padilla v.
United States, 416 F.3d 424, 426-27 (5th Cir. 2005) (per curiam). Cheese’s
argument that Persaud v. United States, 134 S. Ct. 1023 (2014) (mem.), allows
him to proceed under the savings clause is unavailing. See Robinson v. United
States, 812 F.3d 476, 477 (5th Cir. 2016) (per curiam).
Cheese fails to address, and has thus abandoned, the remaining claims
that he raised in the district court. See Hughes v. Johnson, 191 F.3d 607, 613
(5th Cir. 1999). We decline to consider Cheese’s new claims based on
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), as he first raises them here,
see Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011). For the same reason,
we decline to consider his new claims based on Johnson v. United States, 135
S. Ct. 2551 (2015). See Wilson, 643 F.3d at 435 n.1. Cheese may seek to present
his claim based on Johnson in the United States Court of Appeals for the
Fourth Circuit. Cheese was convicted and sentenced in Maryland.
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Case: 15-40703 Document: 00513516990 Page: 3 Date Filed: 05/23/2016
No. 15-40703
AFFIRMED.
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