Michael Vickers v. Maye

Case: 12-50837 Document: 00512219787 Page: 1 Date Filed: 04/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 24, 2013
No. 12-50837
Summary Calendar Lyle W. Cayce
Clerk
MICHAEL DEWAYNE VICKERS,
Petitioner-Appellant
v.
WARDEN MAYE; UNITED STATES OF AMERICA,
Respondents-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:11-CV-958
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Michael Dewayne Vickers, federal prisoner # 35401-177, appeals the
district court’s denial of his 28 U.S.C. § 2241 petition challenging the sentence
imposed under the Armed Career Criminal Act following his conviction for being
a felon in possession of a firearm. Vickers argues that, as in United States v.
Carrillo, 421 F. App’x 395 (5th Cir. 2011), he is actually innocent of the armed
career criminal enhancement because newly discovered evidence shows that his
prior Texas conviction for burglary of a habitation was not a crime of violence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50837 Document: 00512219787 Page: 2 Date Filed: 04/24/2013
No. 12-50837
He argues that, in light of Haley v. Cockrell, 306 F.3d 257, 267-68 (5th Cir.
2002), vacated sub nom. Dretke v. Haley, 541 U.S. 386 (2004), his case should be
an exception to the Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001), standard to correct a miscarriage of justice.
In order to satisfy the criteria of 28 U.S.C. § 2255's savings clause, Vickers
must show that his claims are based on a retroactively applicable Supreme
Court decision which establishes that he may have been convicted of a
nonexistent offense and that the claims were foreclosed by circuit law at the time
when they should have been raised at trial, on appeal, or in an initial § 2255
motion. See Reyes-Requena, 243 F.3d at 904. Vickers has not made the requisite
showing. Accordingly, the district court’s dismissal of Vicker’s § 2241 petition
is AFFIRMED.
To the extent that Vickers seeks authorization to file a successive § 2255
motion raising the above claim, the motion is DENIED. See 28 U.S.C. §§ 2244,
2255(h).
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