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Derrick Rainwater v. Chris McConnell, Warden ( 2020 )


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  •      Case: 18-31012      Document: 00515408749         Page: 1    Date Filed: 05/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-31012                                FILED
Summary Calendar                           May 7, 2020
Lyle W. Cayce
Clerk
DERRICK DAMON RAINWATER,
Petitioner-Appellant
v.
CHRIS MCCONNELL,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-746
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Derrick Damon Rainwater, federal prisoner # 25805-077, was convicted
of six counts of robbery and aiding and abetting, in violation of
    18 U.S.C. § 2
    and
    18 U.S.C. § 1951
     (the Hobbs Act), and of five counts of using a firearm
during a crime of violence (COV) and aiding and abetting, in violation of
    18 U.S.C. § 924
    (c)(1). In the underlying action, Rainwater filed a
    28 U.S.C. § 2241
    petition in which he claimed that he was entitled to relief from his § 924(c)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-31012     Document: 00515408749     Page: 2   Date Filed: 05/07/2020
No. 18-31012
convictions based on Sessions v. Dimaya,
    138 S. Ct. 1204
     (2018), and Johnson
v. United States,
    135 S. Ct. 2551
     (2015), on the theory that those decisions
established that the residual clause of § 924(c)(3)(B) was unconstitutionally
vague. He now appeals the district court’s dismissal of the § 2241 petition.
Our review is de novo. See Pack v. Yusuff,
    218 F.3d 448
    , 451 (5th Cir. 2000).
Generally, challenges to a sentence’s execution are made under § 2241,
and challenges seeking to vacate a conviction or sentence are made under
    28 U.S.C. § 2255
    .   See Tolliver v. Dobre,
    211 F.3d 876
    , 877 (5th Cir. 2000).
However, pursuant to the savings clause of § 2255, a petitioner may proceed
under § 2241 if § 2255 “is inadequate or ineffective to test the legality of his
detention.” § 2255(e); see Jeffers v. Chandler,
    253 F.3d 827
    , 830 (5th Cir. 2001).
A prisoner satisfies the savings clause by raising 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
v. United States,
    243 F.3d 893
    , 904 (5th Cir. 2001).
Rainwater cannot meet that standard.          His arguments focus on the
residual clause of § 924(c)(3)(B). But those arguments are misplaced because
Rainwater’s Hobbs Act robbery convictions, which are the predicates for his
§ 924(c) convictions, are categorically COVs under the elements clause of
§ 924(c)(3)(A). See United States v. Bowens,
    907 F.3d 347
    , 353–54 & nn. 10–11
(5th Cir. 2018), cert. denied,
    139 S. Ct. 1299
     (2019). Thus, Rainwater has failed
to carry his burden to demonstrate the inadequacy of the § 2255 remedy. See
Wilson v. Roy,
    643 F.3d 433
    , 435 (5th Cir. 2011).
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Case: 18-31012   Document: 00515408749   Page: 3   Date Filed: 05/07/2020
No. 18-31012
Accordingly, the district court’s dismissal of the § 2241 petition is
AFFIRMED.    Rainwater’s request for a remand to the district court is
DENIED.
3