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 2023-03

Olive v. Warden FMC Fort Worth ( 2023 )


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  • Case: 22-10162         Document: 00516677130             Page: 1      Date Filed: 03/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10162
Summary Calendar                                 FILED
____________                                March 15, 2023
Lyle W. Cayce
Richard Olive,                                                                     Clerk
Petitioner—Appellant,
versus
Warden FMC Fort Worth,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-1032
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Richard Olive, federal prisoner # 21100-075, appeals the dismissal for
lack of jurisdiction of his
    28 U.S.C. § 2241
     application. He had challenged his
2013 convictions and sentences for mail fraud, wire fraud, and money
laundering. Specifically, he contended that one of his money laundering
convictions was precluded by United States v. Santos,
    553 U.S. 507
     (2008),
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10162      Document: 00516677130           Page: 2    Date Filed: 03/15/2023
No. 22-10162
which clarified the definition of the term “proceeds” as used in
    18 U.S.C. § 1956
    (a)(1). He further argued that he is entitled to bring his Santos claim
under § 2241, in lieu of surmounting
    28 U.S.C. § 2255
    ’s successive filing bar,
because he satisfied § 2255(e)’s “savings clause” in light of Garland v. Roy,
    615 F.3d 391
    , 402 (5th Cir. 2010), which held Santos to have retroactive
application to cases on collateral review.
Pursuant to § 2255(e), a prisoner may challenge the basis of his federal
custody in a § 2241 application 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.” Id. at 904.
Olive fails to show error by the district court. See Christopher v. Miles,
    342 F.3d 378
    , 381 (5th Cir. 2003). Santos was decided five years before
Olive’s trial. In fact, Olive raised an identical Santos claim on direct appeal,
which the Sixth Circuit rejected. United States v. Olive,
    804 F.3d 747
    , 756–
59 (6th Cir. 2015).     Though Olive disagrees with the Sixth Circuit’s
interpretation of Santos, disagreement does not satisfy the savings clause.
Hammoud v. Ma’at,
    49 F.4th 874
    , 880-81 (5th Cir. 2022) (en banc), cert.
denied,
    2023 WL 124108
     (U.S. Jan. 9, 2023) (No. 22-512).
AFFIRMED.
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