Koleowo Adesoye v. M. Batts

Case: 13-10543 Document: 00512515823 Page: 1 Date Filed: 01/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10543
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 29, 2014
KOLEOWO ADEYEMI ADESOYE,
Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
M. BATTS, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:13-CV-68
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Koleowo Adeyemi Adesoye, federal prisoner # 43456-279, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his 2009
convictions in the Southern District of Texas for multiple counts of bank fraud
and one count of aggravated identity theft. In his petition, Adesoye alleged
that the district court impermissibly relied on proffered information on
intended loss to increase his sentence. According to Adesoye, his claims were
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10543 Document: 00512515823 Page: 2 Date Filed: 01/29/2014
No. 13-10543
properly brought under § 2241 via the savings clause of 28 U.S.C. § 2255
because he was asserting a gateway claim of actual innocence.
A federal prisoner can proceed via § 2241 only if he shows that relief
under § 2255 is inadequate or ineffective, which in turn requires him to
demonstrate under the savings clause. This requires advancing “a claim (i)
that is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent
offense and (ii) that was foreclosed by circuit law at the time when the claim
should have been raised in the petitioner’s trial, direct appeal, or first § 2255
motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Adesoye has failed to make the requisite showing. He has also not shown that
his claim of actual innocence provides an exception to the requirement that a
petitioner first satisfy the savings clause of § 2255 in order to challenge his
conviction and sentence in a § 2241 petition. Therefore, the district court did
not err in concluding that Adesoye could not bring his claims in a § 2241
petition or in not conducting a hearing. See Jeffers v. Chandler, 253 F.3d 827,
830-31 (5th Cir. 2001); see also Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.
1989). The district court also did not err in concluding that, to the extent
Adesoye’s petition could be construed as a § 2255 motion, the court lacked
jurisdiction. See § 2255(a); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th
Cir. 1987). Accordingly, the district court’s judgment is AFFIRMED.
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