Robinson v. Pettiford , 115 F. App'x 228 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-60857
Conference Calendar
JOHN WESLEY ROBINSON,
Petitioner-Appellant,
versus
MICHAEL PETTIFORD,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:04-CV-160-Br-Su
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
John Wesley Robinson, federal prisoner #17512-018, appeals
from the judgment dismissing his 28 U.S.C. § 2241 habeas corpus
petition. Robinson contends that the district court erred by
holding that he had failed to satisfy the requirements of Reyes-
Requena v. United States, 243 F.3d 893 (5th Cir. 2001), to pursue
28 U.S.C. § 2241 relief because he relied on the retroactive
application of the Supreme Court’s decision in Stinson v. United
States, 508 U.S. 36 (1993), for his underlying habeas claim. In
*
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that this opinion should not be published and is not precedent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. 04-60857
-2-
Stinson, the Supreme Court held, inter alia, that the
commentaries to the sentencing guidelines are binding in most
instances. See Stinson, 508 U.S. at 43-47. Robinson argues that
relief on his claim was not possible until 1999, when the
Eleventh Circuit decided United States v. Gallo, 195 F.3d 1278(11th Cir. 1999), in which the Eleventh Circuit relied on Stinson
to hold that sentencing guidelines commentary requiring a finding
of reasonable foreseeability before adjustment of a defendant’s
offense level for possession of a firearm by a coconspirator was
binding. Gallo, 195 F.3d at 1283.
Robinson has not shown that the district court erred by
dismissing his 28 U.S.C. § 2241 petition. First, Stinson was
decided in 1993, before Robinson was convicted. Thus, Robinson
could have relied on Stinson during his sentencing, on direct
appeal, or in his previous 28 U.S.C. § 2255 proceeding. Robinson
thus does not rely on retroactive application of a Supreme Court
opinion for his claim. See Reyes-Requena, 243 F.3d at 904.
AFFIRMED.