Stanley Robinson v. United States , 812 F.3d 476 ( 2016 )

Case: 15-50045 Document: 00513370897 Page: 1 Date Filed: 02/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50045
Fifth Circuit
FILED
Summary Calendar February 5, 2016
Lyle W. Cayce
STANLEY ROBINSON, Clerk
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM:
Stanley Robinson, federal prisoner # 25071-044, moves for leave to
proceed in forma pauperis (IFP) in this appeal from the dismissal of his 28
U.S.C. § 2241 petition. In his petition, Robinson challenged the sentence
imposed following his conviction in 1998 in the Eastern District of Missouri of
possession of cocaine with intent to distribute, of using a firearm during and
in relation to a drug trafficking crime, and of being a felon in possession of a
firearm. Robinson contends that he should be permitted to proceed under the
savings clause of 28 U.S.C. § 2255.
We have construed Robinson’s motion as a challenge to the district
court’s determination that his appeal has not been brought in good faith. See
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No. 15-50045
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citations omitted).
Section 2255 provides “the primary means of collaterally attacking a
federal sentence.” Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2241, on the other hand, is used to challenge “the manner in which a sentence
is executed.” Id. A petition filed under § 2241 that raises errors that occurred
at or prior to sentencing should be construed as a § 2255 motion. Id. at 877-
78. However, under the savings clause, a § 2241 petition that attacks custody
resulting from a federally imposed sentence may be entertained if the
petitioner shows that the remedy provided under § 2255 is inadequate or
ineffective to test the legality of his detention. Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001); see also § 2255(e).
Robinson has the burden of showing that the § 2255 remedy is
inadequate or ineffective. See Wesson v. United States Penitentiary Beaumont,
TX, 305 F.3d 343, 347 (5th Cir. 2002). He must show that his claims are “based
on a retroactively applicable Supreme Court decision which establishes that
the petitioner may have been convicted of a nonexistent offense” and were
“foreclosed by circuit law at the time when the claim[s] should have been raised
in [his] trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001); see also Jeffers, 253 F.3d at 830-31.
Robinson wishes to challenge the legality of his sentence based on the
reasoning of Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v.
Washington, 542 U.S. 296 (2004); Alleyne v. United States, 133 S. Ct. 2151(2013); and Persaud v. United States, 134 S. Ct. 1023 (2014). His invocation of
Apprendi, Blakely, and Alleyne, is predicated on his contention that Persaud
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announced a change in the law. Persaud was not a substantive decision and,
therefore, does not support Robinson’s contention that the particular
sentencing errors he complains of are amenable to § 2241 relief in this case.
The request for leave to proceed IFP on appeal is DENIED, and the
appeal is DISMISSED. See Baugh v. Taylor, 117 F.3d 197, 202 n.24; see also
5TH CIR. R. 42.2.
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