Thompson v. Warden ( 2023 )

Case: 20-40593 Document: 00516684480 Page: 1 Date Filed: 03/21/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 20-40593
FILED
March 21, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Chadwick Marvin Thompson,
Petitioner—Appellant,
versus
Warden, FCI Texarkana,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:20-CV-46
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam:*
Chadwick Marvin Thompson, federal inmate # 07787-078 and
proceeding pro se, appeals the dismissal of his 28 U.S.C. § 2241 habeas
petition. He was convicted in 2013 for conspiracy to distribute and possess
with intent to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846, and sentenced as a career offender under Sentencing
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 20-40593 Document: 00516684480 Page: 2 Date Filed: 03/21/2023
No. 20-40593
Guideline § 4B1.1(b)(1). He contends: application of the career-offender
enhancement was predicated on his 1999 conviction for illegal possession of
a machine gun; that conviction would be invalid under intervening Supreme
Court decisions; therefore, his current sentence was enhanced improperly
for a nonexistent crime.
The district court ruled Thompson’s challenge: had to be pursued in
a 28 U.S.C. § 2255 motion to vacate, set aside, or correct; and did not fall
within § 2255(e)’s “savings clause”. The court’s factual findings are
reviewed for clear error; its legal conclusions, de novo. E.g., Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003).
Thompson does not challenge “the manner in which [his] sentence is
[being] carried out”. Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).
Rather, his claim is based on an alleged error which “occurred at or prior to
sentencing”; therefore, he was required to pursue his challenge in a motion
under § 2255, instead of § 2241, unless he satisfies § 2255’s savings clause.
Id. (citation omitted).
Where petitioner improperly pursues his challenge in a § 2241 motion,
the savings clause permits review where he “establishes that the remedy
provided for under section 2255 is inadequate or ineffective”. Id.; see
§ 2255(e) (savings clause). Our court has held the remedy provided under
§ 2255 is inadequate or ineffective when petitioner’s challenge is, inter alia,
“based on a retroactively applicable Supreme Court decision which
establishes [he] may have been convicted of a nonexistent offense”. Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Thompson’s contention “that he is actually innocent of being a career
offender . . . is not the type of argument that courts have recognized may
warrant review under § 2241” because he “makes no assertion that he is
innocent of the crime for which he was convicted”. Kinder v. Purdy, 222 F.3d
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No. 20-40593
209, 213–14 (5th Cir. 2000) (emphasis added). Accordingly, he fails to meet
his burden of showing § 2255 “is inadequate or ineffective to test the legality
of his detention”. § 2255(e).
He additionally contends our court should join the fourth circuit in
expanding § 2255(e)’s savings clause to encompass sentencing errors. See
generally United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Our court
recently declined to “revisit the issues decided in Reyes-Requena”. Hammoud
v. Ma’at, 49 F.4th 874, 882–83 (5th Cir. 2022) (en banc). Therefore, Reyes-
Requena—and Kinder—continue to govern the application of § 2255(e) in
this circuit.
AFFIRMED.
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