United States v. Rocha

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11191
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN ROCHA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-2456-G
USDC No. 3:89-CR-95-3-G
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September 3, 2002
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Ruben Rocha, federal prisoner # 18815-077, appeals from the
district court’s dismissal of his 28 U.S.C. § 2255 motion in
which he sought to challenge his 18 U.S.C. § 924(c) firearm
conviction in light of Bailey v. United States, 516 U.S. 137
(1995). He argues that the district court erred in not allowing
*
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that this opinion should not be published and is not precedent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.
No. 01-11191
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him to bring this claim pursuant to the savings clause of 28
U.S.C. § 2255.
This court had granted Rocha a certificate of appealability
on the issue whether the expiration of the limitations period to
seek relief pursuant to 28 U.S.C. § 2255 may render that section
ineffective as an avenue of relief on claims raised pursuant to
Bailey, allowing a prisoner to seek relief pursuant to 28 U.S.C.
§ 2241. However, we decline to reach that issue because the
district court’s judgment may be affirmed on other grounds.
See United States v. Flores, 135 F.3d 1000, 1002 (5th Cir. 1998).
In order to file a 28 U.S.C. § 2241 petition pursuant to the
savings clause of 28 U.S.C. § 2255, the petitioner must show that
1) his claims are based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have
been convicted of a nonexistent offense and 2) his claims were
foreclosed by circuit law at the time when the claims should have
been raised in his trial, appeal, or first 28 U.S.C. § 2255
motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th
Cir. 2001). Rocha argues that in light of Bailey, his conviction
for “use” of a firearm cannot be sustained. However, Rocha was
also indicted for and convicted of “carrying” a firearm during
and in relation to a crime of violence under 18 U.S.C. § 924(c).
This court has already held that there was sufficient evidence to
support that conviction. See United States v. Rocha, 916 F.2d
219, 236-37 (5th Cir. 1990). As Bailey had no effect on the
No. 01-11191
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definition of “carrying” under 18 U.S.C. § 924(c), see United
States v. Rivas, 85 F.3d 193, 195 (5th Cir. 1996), Rocha was
convicted of an offense and cannot meet the first prong of the
Reyes-Requena test. Accordingly, the district court’s judgment
denying his 28 U.S.C. § 2255 motion is AFFIRMED.