Thomas Braddy, Jr. v. UP Fox ( 2013 )

Case: 12-41211 Document: 00512323658 Page: 1 Date Filed: 07/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2013
No. 12-41211
Summary Calendar Lyle W. Cayce
Clerk
THOMAS M. BRADDY, JR.,
Petitioner-Appellant
v.
UP FOX,
Respondent-Appellee
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 1:10-CV-401
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Thomas M. Braddy, Jr., federal prisoner # 58886-019, appeals the district
court’s denial, following remand from this court in Braddy v. Fox, 476 F. App’x
51, 51-52 (5th Cir. 2012), of his 28 U.S.C. § 2241 petition. He had been convicted
of bank fraud conspiracy, aggravated identity theft, and money laundering, and
he was sentenced to 174 months of imprisonment. Braddy argues that the
Government breached his plea agreement by housing him in the same prison
camp as one of his co-conspirators. He further contends that his claim that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41211 Document: 00512323658 Page: 2 Date Filed: 07/29/2013
No. 12-41211
Government breached the plea agreement is cognizable in a § 2241 petition, and
he repeatedly requests immediate release. Braddy has also filed a motion to
remand, to recuse Judges Garza, Southwick, and Haynes, and for the
appointment of counsel.
To the extent the district court construed Braddy’s claim of breach of the
plea agreement as a § 2241 challenge to the manner of the execution of his
sentence, the district court determined that the claim was moot, as the alleged
breach was cured when Braddy was moved to a different facility. While Braddy
provides legal boilerplate regarding this issue, he fails to provide a coherent
challenge to the district court’s determinations regarding this issue. He has
therefore abandoned any such challenge. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). To the extent that Braddy is using his claim of
breach of the plea agreement to challenge the legality of his conviction and
sentence, the district court properly determined that the claim was a 28 U.S.C.
§ 2255 challenge. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The
district court also properly determined that it lacked jurisdiction unless Braddy’s
claims met the requirements of the savings clause of § 2255(e), as Braddy was
convicted in the Eastern District of Virginia and he was previously denied § 2255
relief. See Braddy, 476 F. App’x at 52; § 2255(e). Braddy’s arguments do not
suggest that his claim of breach of the plea agreement is based upon a
retroactively applicable Supreme Court decision, nor do his arguments suggest
that he was convicted of a nonexistent offense. See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). Accordingly, Braddy’s claim does not
meet the requirements of the savings clause. Id.For the foregoing reasons, the district court’s judgment is AFFIRMED.
Braddy’s motion to remand, to recuse Judges Garza, Southwick, and Haynes,
and for the appointment of counsel is DENIED.
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