Triplett v. Roy , 326 F. App'x 720 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2009
No. 08-40904
Conference Calendar Charles R. Fulbruge III
Clerk
RONNIE GLENN TRIPLETT
Petitioner-Appellant
v.
KEITH ROY
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:08-CV-123
Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
Ronnie Glenn Triplett, federal prisoner # 15692-064, appeals the district
court’s denial of his petition, filed pursuant to 28 U.S.C. § 2241, in which he
challenged the constitutionality of his conviction for being a felon in possession
of a firearm in light of the recent Supreme Court decision in District of Columbia
v. Heller, 128 S. Ct. 2783 (2008). Triplett contends that his claim may be
considered under the savings clause of 28 U.S.C. § 2255 because Heller
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40904
establishes that he was convicted of a nonexistent offense and the claim was
previously foreclosed by circuit law.
Under the savings clause of § 2255(e), a § 2241 petition that attacks
custody resulting from a federally imposed sentence may be entertained if the
petitioner establishes 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). To do so, the petitioner must show that (1) 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 (2) his claims 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).
In Heller, the Court specifically noted that possession of a firearm by a
convicted felon did not fall within the protection of the Second Amendment right
to bear arms. 128 S. Ct. at 2816-17. In United States v. Darrington, 351 F.3d
632, 633-34 (5th Cir. 2003), this court held that 18 U.S.C. § 922(g), prohibiting
possession of a firearm by a convicted felon, does not violate the Second
Amendment right to bear arms. Recently, this court reaffirmed the holding in
Darrington, stating that “Heller provides no basis for reconsidering Darrington.”
United States v. Anderson, ___ F.3d ___, No. 08-40160, 2009 WL 330263 at *2
(5th Cir. Feb. 11, 2009). Triplett fails to show that his claim falls within the
savings clause of § 2255. See Reyes-Requena, 243 F.3d at 904.
Accordingly, the judgment of the district court is AFFIRMED.
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