Ricky Dority v. Keith Roy

Case: 10-40819 Document: 00511432410 Page: 1 Date Filed: 04/01/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 1, 2011
No. 10-40819
Summary Calendar Lyle W. Cayce
Clerk
RICKY LEON DORITY,
Petitioner - Appellant
v.
WARDEN KEITH ROY,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:08-CV-127
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Ricky Leon Dority, federal prisoner # 03636-063,
appeals the dismissal of his 28 U.S.C. § 2241 petition challenging the
constitutionality of his conviction under 18 U.S.C. § 922(g) (felon in possession
of a firearm). Dority contends: the conviction is invalid because, in the light of
District of Columbia v. Heller, 554 U.S. 570 (2008) (finding District of Columbia’s
prohibition on in-home possession of handguns unconstitutional), the Second
Amendment prohibits any infringement on the right to bear arms; he was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40819 Document: 00511432410 Page: 2 Date Filed: 04/01/2011
No. 10-40819
convicted of a nonexistent offense; and his claim fits within the “savings clause”
of 28 U.S.C. § 2255 because § 922(g) is facially unconstitutional.
The court’s findings of fact are reviewed for clear error; its legal
conclusions, de novo. Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005).
A § 2241 petition attacking custody resulting from a federally-imposed sentence
may be entertained if petitioner establishes that § 2255’s remedy is “inadequate
or ineffective to test the legality of his detention”. 28 U.S.C. § 2255(e).
Petitioner must show his claims: (1) are “based on a retroactively applicable
Supreme Court decision which establishes that [he] may have been convicted of
a nonexistent offense”; and (2) were “foreclosed by circuit law at the time when
the claim[s] should have been raised in [his] trial, appeal, or first § 2255 motion”.
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
The Supreme Court noted in Heller: the Second Amendment “is not
unlimited”; and the Court expressly reaffirmed the “longstanding prohibition[]
on the possession of firearms by felons . . . .” 554 U.S. at 626-27. Prior to Heller,
in United States v. Darrington, 351 F.3d 632, 633-34 (5th Cir. 2003), our court
held that § 922(g), prohibiting the possession of firearms by convicted felons,
does not violate the Second Amendment right to bear arms. In 2009, in the light
of Heller, our court reaffirmed Darrington’s holding, stating: “Heller provides no
basis for reconsidering Darrington”. United States v. Anderson, 559 F.3d 348,
352 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009).
AFFIRMED.
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