Jimmy Sharbutt v. N. Vasquez ( 2019 )


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  •      Case: 17-41106       Document: 00514815884         Page: 1     Date Filed: 01/30/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 17-41106                           January 30, 2019
    Summary Calendar
    Lyle W. Cayce
    Clerk
    JIMMY LEE SHARBUTT,
    Petitioner-Appellant
    v.
    N. VASQUEZ, Warden,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 1:13-CV-514
    Before BARKSDALE, ELROD, and HO, Circuit Judges,
    PER CURIAM: *
    Jimmy Lee Sharbutt, federal prisoner # 09112-062 and proceeding pro
    se, contests the dismissal of his 28 U.S.C. § 2241 petition.                 Sharbutt was
    convicted of being a felon in possession of a firearm and ammunition. The
    district court concluded he was an armed career criminal and sentenced him,
    inter alia, to 262 months’ imprisonment. See 18 U.S.C. §§ 922(g)(1), 924(e).
    Subsequently, his 28 U.S.C. § 2255 motion was denied.
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 17-41106     Document: 00514815884    Page: 2    Date Filed: 01/30/2019
    No. 17-41106
    For his § 2241 motion, Sharbutt contends the court erred in concluding
    he failed to meet the requirements of the savings clause of § 2255(e), which
    would permit him to proceed under § 2241 (generally reserved for challenges
    to the manner in which a sentence is being executed). According to Sharbutt,
    Mathis v. United States, 
    136 S. Ct. 2243
    (2016), prohibits the application of the
    armed-career-criminal enhancement for convictions of offenses defined more
    broadly than the generic offense listed in § 924(e)(2)(B)(ii), such as his prior
    conviction of Oklahoma second-degree burglary.            See United States v.
    Hamilton, 
    889 F.3d 688
    , 699 (10th Cir. 2018).
    The district court’s determination of law in dismissing a § 2241 petition
    is reviewed de novo. Garland v. Roy, 
    615 F.3d 391
    , 396 (5th Cir. 2010). To
    proceed under § 2241, Sharbutt has to meet the requirements of the savings
    clause in § 2255(e) by showing his claim was “based on a retroactively
    applicable Supreme Court decision which establishes that . . . petitioner may
    have been convicted of a nonexistent offense” and “foreclosed by circuit law at
    the time when the claim should have been raised in . . . petitioner’s trial,
    appeal, or first § 2255 motion”. Reyes-Requena v. United States, 
    243 F.3d 893
    ,
    904 (5th Cir. 2001).
    Because Mathis implicates the validity of a sentence enhancement,
    Mathis does not establish Sharbutt was convicted of a nonexistent offense. See
    Padilla v. United States, 
    416 F.3d 424
    , 425–27 (5th Cir. 2005) (pre-Mathis
    action in which petitioner “[did] not attack his conviction and his claims
    challenge only the validity of his sentence”). Moreover, Mathis does not apply
    retroactively. See 
    Mathis, 136 S. Ct. at 2257
    ; see also In re Lott, 
    838 F.3d 522
    ,
    523 (5th Cir. 2016) (denying authorization to file a successive § 2255 motion
    because petitioner “failed to [show] Mathis . . . set forth [a] new rule[ ] of
    2
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    No. 17-41106
    constitutional law that [has] been made retroactive to cases on collateral
    review” (citation omitted)).
    AFFIRMED.
    3
    

Document Info

Docket Number: 17-41106

Filed Date: 1/30/2019

Precedential Status: Non-Precedential

Modified Date: 4/18/2021