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 2022-06

Hester v. FCI Texarkana ( 2022 )


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  • Case: 21-40436      Document: 00516359652         Page: 1     Date Filed: 06/16/2022
United States Court of Appeals
for the Fifth Circuit                                United States Court of Appeals
Fifth Circuit
FILED
June 16, 2022
No. 21-40436
Summary Calendar                          Lyle W. Cayce
Clerk
Joe Hester,
Petitioner—Appellant,
versus
Warden FCI Texarkana,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:19-CV-165
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Joe Hester, federal prisoner # 22676-424, appeals the district court’s
dismissal of his
    28 U.S.C. § 2241
     petition challenging his conviction for
possession of a firearm by a felon under
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2)
in light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40436      Document: 00516359652           Page: 2     Date Filed: 06/16/2022
No. 21-40436
2191 (2019). The district court denied the petition, determining that Hester
had not shown under the savings clause of
    28 U.S.C. § 2255
    (e) that the
remedy provided for in § 2255 was inadequate or ineffective.
A prisoner may, pursuant to the savings clause of § 2255(e), 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 v. United States,
    243 F.3d 893
    , 901 (5th
Cir. 2001). “[T]he savings clause of § 2255 applies to a claim (i) that is based
on a retroactively applicable Supreme Court decision which establishes that
the petitioner 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.” Reyes-Requena,
    243 F.3d at 904
    . On appeal from the denial of a § 2241 petition, the district
court’s factual findings are reviewed for clear error and its conclusions of law
are reviewed de novo. Christopher v. Miles,
    342 F.3d 378
    , 381 (5th Cir. 2003).
Hester argues on appeal that Rehaif rendered his conviction unlawful
and that he was entitled to raise that claim in a § 2241 petition under the
§ 2255(e) savings clause because he had already filed two § 2255 motions by
the time Rehaif was decided. In describing his claim under Rehaif, he
contends for the first time on appeal that he is entitled to relief because the
issue of whether he knew of his status as a convicted felon was not put before
the jury. He also contends for the first time on appeal that his right to a speedy
trial was violated and that the district court violated
    28 U.S.C. §§ 454
     and
455. We will not consider these issues for the first time on appeal. See, e.g.,
Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir. 1999) (per
curiam).
Hester does not challenge the district court’s determination that his
claims involving the Sentencing Guidelines, the excessiveness of his
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Case: 21-40436      Document: 00516359652          Page: 3   Date Filed: 06/16/2022
No. 21-40436
sentence, and an improper amendment of the indictment did not satisfy
either prong of the test set out in Reyes-Requena. As to his Rehaif argument,
he does not assert on appeal, as he argued in the district court, that the
Government failed to prove the possession element of the offense charged.
Accordingly, he has abandoned those issues. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993). Moreover, even if Hester’s appellate brief were
liberally construed as arguing that the Government failed to prove the
possession element of the offense in violation of Rehaif, the status element of
the offense, rather than the possession element, was at issue in Rehaif, and
Hester has not met the requirements of Reyes-Requena. See Reyes-Requena,
    243 F.3d at 901
    ; see also Rehaif, 139 S. Ct. at 2196; Abram v. McConnell,
    3 F.4th 783
    , 785-86 (5th Cir. 2021).
Accordingly, the district court’s judgment is AFFIRMED.
Hester’s motion for a copy of this court’s determination why it was not
required to decide his case within 30 days is DENIED.
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