David Poindexter v. Cheron Nash, Warden ( 2020 )

Case: 19-60530 Document: 00515589913 Page: 1 Date Filed: 10/05/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 5, 2020
No. 19-60530 Lyle W. Cayce
Summary Calendar Clerk
David Poindexter,
Petitioner—Appellant,
versus
Cheron Nash, Warden, Federal Correctional Institute
Yazoo City Medium,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CV-150
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
David Poindexter, federal prisoner # 13724-076, was convicted of
armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); killing a
person in avoiding or attempting to avoid apprehension for the bank robbery,
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60530
in violation of § 2113(e); using and carrying a firearm during the robbery, in
violation of 18 U.S.C. § 924(c); assault with a dangerous weapon with intent
to do bodily harm within the special territorial jurisdiction of the United
States, in violation of 18 U.S.C. § 113(c); unlawfully seizing and abducting a
person within the special territorial jurisdiction of the United States, in
violation of 18 U.S.C. § 1201; and carrying and using a firearm during the
kidnapping, in violation of § 924(c). United States v. Poindexter, 44 F.3d 406,
408 (6th Cir. 1995). He was sentenced to life imprisonment plus twenty-five
years. Id.He appeals the district court’s denial of his 28 U.S.C. § 2241 petition,
challenging his conviction for killing a person in the course of avoiding and
attempting to avoid apprehension for the bank robbery under § 2113(e)
pursuant to the savings clause of 28 U.S.C. § 2255(e). In the district court,
Poindexter argued that, in view of Elonis v. United States, 135 S. Ct. 2001(2015), he was convicted of conduct that § 2113(e) does not make criminal
because his indictment did not charge and the jury did not find that he had
the specific intent to kill. In this court, he also relies on Rehaif v. United
States, 139 S. Ct. 2191 (2019), to support his argument.
Where, as here, the district court dismisses a § 2241 petition on the
pleadings, our review is de novo. See Pack v. Yusuff, 218 F.3d 448, 451 (5th
Cir. 2000). A petitioner can attack the validity of his conviction and sentence
in a § 2241 petition only if he can meet the requirements of the “savings
clause” of § 2255(e). Reyes-Requena v. United States, 243 F.3d 893, 901 (5th
Cir. 2001). The petitioner must shoulder the burden of affirmatively showing
that the remedy under § 2255 would be “inadequate or ineffective to test the
legality of his detention.” § 2255(e); Reyes-Requena, 243 F.3d at 901. One
makes this showing by establishing that his claim (1) “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and (2) “was
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No. 19-60530
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.
Neither Elonis nor Rehaif interpreted the requirements of an offense
pursuant to § 2113(e), let alone mandated that § 2113(e) is a specific intent
crime. See Elonis, 135 S. Ct. 2001; see also Rehaif, 139 S. Ct. 2191. The
decisions in Elonis and Rehaif, in effect, did not address § 2113(e), but rather
interpreted components of materially different crimes. See Elonis, 135 S. Ct.
2011-12 (considering 18 U.S.C. § 875(c)); Rehaif, 139 S. Ct. at 2200(considering 18 U.S.C. §§ 922(g) and 924(a)(2)). Moreover, we have
already concluded that Elonis did not mandate that all federal statutes be
interpreted as specific intent crimes. See United States v. Petras, 879 F.3d 155,
165-66 (5th Cir. 2018).
Accordingly, Poindexter has not shown that he may have been
convicted of a nonexistent offense in light of Elonis or Rehaif. Thus,
regardless whether Elonis or Rehaif applies retroactively or his instant
challenge to § 2113(e) was foreclosed, Poindexter has not established that the
district court erred in determining that he did not meet the requirements of
the savings clause of § 2255(e). See § 2255(e); Reyes-Requena, 243 F.3d at
903-04.
Accordingly, the judgment of the district court is AFFIRMED.
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