Dedrick v. USA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 08-40079
Conference Calendar Charles R. Fulbruge III
Clerk
JERRY LEWIS DEDRICK
Petitioner-Appellant
v.
UNITED STATES OF AMERICA; JODY R UPTON, Warden
Respondents-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:07-CV-971
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jerry Lewis Dedrick, federal prisoner # 27140-180, appeals the district
court’s denial of his 28 U.S.C. § 2241 petition challenging his guilty plea
conviction and sentence for aiding and abetting the possession of more than 50
grams of cocaine base with intent to distribute. The district court denied
Dedrick’s § 2241 petition because he had not shown that his claims satisfied the
requirements of the 28 U.S.C. § 2255 savings clause. Dedrick argues that the
district court should have construed his § 2241 petition as a second or successive
*
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should not be published and is not precedent except under the limited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. 08-40079
§ 2255 motion and transferred it to this court as a motion for authorization to
file a successive § 2255 motion. Dedrick also argues that the indictment was
“bogus”; he was never in possession of the cocaine base; and he is actually
innocent of the enhanced sentence because he did not receive notice concerning
the career criminal enhancement.
In order to satisfy the criteria of § 2255’s savings clause, Dedrick 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 v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Dedrick has
not made the requisite showing. Accordingly, the district court’s dismissal of
Dedrick’s § 2241 petition is AFFIRMED. To the extent that Dedrick seeks
authorization to file a successive § 2255 motion raising the above claims, the
motion is DENIED. See 28 U.S.C. §§ 2244(b)(2), 2255(h).
2