Stovall v. Johnson ( 2021 )

Case: 19-31061 Document: 00515811674 Page: 1 Date Filed: 04/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 7, 2021
No. 19-31061 Lyle W. Cayce
Summary Calendar Clerk
Brenson Stovall,
Petitioner—Appellant,
versus
Calvin Johnson, Warden, Federal Correctional Complex Pollock,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:19-CV-1291
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Brenson Stovall, federal prisoner # 34009-077, was convicted of four
counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), (b); three
counts of using a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i); and one count of brandishing a firearm during a crime of
*
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opinion should not be published and is not precedent except under the limited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: 19-31061 Document: 00515811674 Page: 2 Date Filed: 04/07/2021
No. 19-31061
violence, in violation of § 924(c)(1)(A)(ii). In the underlying action, Stovall
filed a 28 U.S.C. § 2241 petition in which he claimed that he was entitled to
relief from his § 924(c) convictions based on Johnson v. United States, 576
U.S. 591 (2015), Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and United States
v. Davis, 139 S. Ct. 2319 (2019), 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).
Stovall cannot meet that standard. He argues that his Hobbs Act
convictions are not COVs under either the definition of § 924(c)(3)(A) (the
elements clause) or the definition of § 924(c)(3)(B) (the residual clause)
because a Hobbs Act conviction can involve the non-violent offense of
extortion. But those arguments are misplaced because Stovall’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).
2
Case: 19-31061 Document: 00515811674 Page: 3 Date Filed: 04/07/2021
No. 19-31061
Thus, Stovall 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).
Accordingly, the district court’s dismissal of the § 2241 petition is
AFFIRMED.
3