Amy Newman v. Joe Keffer

Case: 10-11200 Document: 00511538455 Page: 1 Date Filed: 07/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 13, 2011
No. 10-11200
Summary Calendar Lyle W. Cayce
Clerk
AMY NEWMAN,
Petitioner-Appellant
v.
JOE KEFFER, Warden, FMC-Carswell,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CV-797
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Amy Newman, federal prisoner # 41712-074, appeals the district court’s
dismissal of her 28 U.S.C. § 2241 petition for lack of jurisdiction. She argues
that the district court erred in denying her claim for lack of jurisdiction. She
asserts that, in view of United States v. Almany, 598 F.3d 238 (6th Cir. 2010),
she should not have received two mandatory minimum sentences for her
convictions under 28 U.S.C. § 841 and 18 U.S.C. § 924(c). If her brief is liberally
construed, Newman contends that her claim may be raised under the savings
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11200 Document: 00511538455 Page: 2 Date Filed: 07/13/2011
No. 10-11200
clause contained in 28 U.S.C. § 2255; she asserts that her claim cannot be raised
in a successive § 2255 motion because it is not based on newly discovered
evidence or a new rule of constitutional law and, therefore, a § 2255 motion
would be inadequate.
Because Newman is challenging the legality of her sentence, and not the
manner in which her sentence is being executed, the district court did not err in
concluding that her claim arises under § 2255. See Padilla v. United States, 416
F.3d 424, 425-26 (5th Cir. 2005). She has not shown that her claim falls within
§ 2255’s savings clause as she has not demonstrated that (1) her claim “is based
on a retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense”; and (2) her claim
“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.” See
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Further,
Newman’s inability to meet the requirements for filing a successive § 2255
motion does not make the § 2255 remedy inadequate. See Tolliver v. Dobre, 211
F.3d 876, 878 (5th Cir. 2000).
Finally, Newman has not shown that the district court erred in
determining that it lacked jurisdiction over a § 2255 motion. Newman was
convicted and sentenced in the Eastern District of Tennessee, but she filed the
instant petition in the Northern District of Texas. Therefore, the district court
did not err in dismissing it for lack of jurisdiction. See § 2255(e); see also Solsona
v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987).
AFFIRMED.
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