Walker v. United States
Walker v. United States
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 02-11147 Summary Calendar
JOHN D WALKER
Petitioner - Appellant
v.
UNITED STATES OF AMERICA
Respondent - Appellee
-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:02-CV-668 USDC No. 4:92-CR-128-A -------------------- February 4, 2003
Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
John D. Walker, federal inmate # 23826-077, appeals the
dismissal of his
28 U.S.C. § 2241petition. Walker was convicted
following entry of guilty pleas to charges of interference with
commerce by robbery in violation of
18 U.S.C. § 1951and use of a
firearm during a crime of violence in violation of 18 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-11147 -2-
§ 924(c). He was sentenced to serve a total of 196 months’
imprisonment and three years’ supervised release.
Walker contends that the district court erred by dismissing
his
28 U.S.C. § 2241petition on procedural grounds without
considering the merits of the issues. He asserts that his
petition arose properly under
28 U.S.C. § 2241and should not
have been construed under
28 U.S.C. § 2255. He argues that
28 U.S.C. § 2255does not provide an adequate and effective remedy.
Walker contends that he is legally innocent of the sentence that
he received because
18 U.S.C. § 1951does not authorize
sentencing enhancements based on relevant conduct.
We review the district court’s legal conclusions de novo.
Jeffers v. Chandler,
253 F.3d 827, 830(5th Cir.), cert. denied,
122 S. Ct. 476(2001). Section 2255, 28 U.S.C., is used to
collaterally attack a federal conviction and sentence based on
errors that occurred at trial or at sentencing whereas
28 U.S.C. § 2241is used to challenge the manner in which a sentence is
executed.
Id.Under the savings clause of
28 U.S.C. § 2255, a
28 U.S.C. § 2241petition that attacks custody resulting from a federally
imposed sentence may be entertained if the petitioner establishes
that the remedy provided under
28 U.S.C. § 2255is inadequate or
ineffective to test the legality of his detention.
Id.To do
so, the petitioner must establish (1) actual innocence, i.e.,
that he has been imprisoned for conduct that did not constitute a No. 02-11147 -3-
crime, and (2) that his claims were “‘foreclosed by circuit law
at the time when the claims should have been raised in his trial,
appeal, or first § 2255 motion.’” Id. at 830, 831. Actual
innocence is shown by demonstrating that the claim is based on
retroactively applicable Supreme Court law that establishes that
the petitioner was convicted of a nonexistent offense. Id.
Walker has not made the required showing. Walker argues
that he is innocent of enhancements that were applied at
sentencing. Walker’s claim is foreclosed by our opinion in
Kinder v. Purdy,
222 F.3d 209, 213-14(5th Cir. 2000), cert.
denied,
531 U.S. 1132(2001). Walker’s
28 U.S.C. § 2241petition
was properly construed as a successive
28 U.S.C. § 2255motion
and dismissed. Accordingly, the district court’s judgment is
AFFIRMED. Walker’s motion for appointment of counsel is DENIED.
Reference
- Status
- Unpublished