Cassie Ball v. Marne Boyle, Warden

Case: 15-20715 Document: 00513675158 Page: 1 Date Filed: 09/13/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20715
FILED
September 13, 2016
Summary Calendar
Lyle W. Cayce
Clerk
CASSIE BALL,
Petitioner-Appellant
v.
MARNE BOYLE, Warden, Federal Prison Camp Bryan,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-3045
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Cassie Ball pleaded guilty to conspiracy to manufacture, distribute, and
possess, with the intent to distribute, methamphetamine, in violation of 21
U.S.C. § 846, and to possessing a firearm in furtherance of a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c). She is serving a 180-month sentence.
Ball did not pursue a direct appeal. Her 28 U.S.C. § 2255 motion was denied,
as was her attempt to pursue a successive § 2255 motion.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 15-20715
Proceeding pro se, Ball contests the dismissal of her 28 U.S.C. § 2241
petition, urging she is entitled to relief because she is actually innocent of the
firearms offense, and her continued incarceration will result in a miscarriage
of justice. The dismissal of a § 2241 petition is reviewed de novo. See Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
Through that petition, a federal prisoner may attack the validity of his
conviction if he can meet the requirements of the savings clause in § 2255.
Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001). The
prisoner must establish the remedy provided under § 2255 would be
“inadequate or ineffective to test the legality of his detention”. 28 U.S.C.
§ 2255(e); Reyes-Requena, 243 F.3d at 901. To make that showing, a prisoner
must make a claim (1) “based on a retroactively applicable Supreme Court
decision which establishes that the petitioner may have been convicted of a
nonexistent offense” that (2) “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, 243 F.3d at 904.
Ball fails to make the required showing. To the extent she relies on
Rosemond v. United States, 134 S. Ct. 1240 (2014), she has not demonstrated
it applies retroactively to cases on collateral review. See Tyler v. Cain, 533
U.S. 656, 663 (2001) (“[A] new rule is not ‘made retroactive to cases on
collateral review’ unless the Supreme Court holds it to be retroactive”).
Moreover, assuming, arguendo, Rosemond is retroactively applicable, Ball has
not shown it establishes she may have been convicted of a nonexistent offense.
Ball was charged and convicted under § 924(c); because she was neither
charged nor convicted under the aiding and abetting statute, 18 U.S.C. § 2,
Rosemond does not apply. See 134 S. Ct. at 1243 (concerning cases where the
Government charges a defendant with aiding or abetting, under 18 U.S.C. § 2,
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No. 15-20715
conduct that violates § 924(c)). Furthermore, Ball acknowledged in her written
plea agreement and factual basis that she “knowingly possessed” the loaded
pistol underlying the § 924 violation.
Ball’s “actual innocence” argument is unavailing. She presents no
authority for an “actual innocence” gateway to challenge a conviction and
sentence in a § 2241 petition if the petitioner fails to satisfy the requirements
of § 2255’s savings clause. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928
(2013); Foster v. Quarterman, 466 F.3d 359, 367−68 (5th Cir. 2006).
AFFIRMED.
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