Case: 14-40925      Document: 00512999820         Page: 1    Date Filed: 04/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                    No. 14-40925                                 April 9, 2015
                                  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 SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Petitioner-Appellant Jimmy Lee Sharbutt, federal prisoner # 09112-062,
appeals the district court’s denial and dismissal of his 28 U.S.C. § 2241 petition
for habeas corpus relief. Sharbutt challenged the enhancement to his sentence
pursuant to the Armed Career Criminal Act, following his conviction of being
a felon in possession of a firearm. The district court denied relief, concluding
that such allegations should be presented in a 28 U.S.C. § 2255 motion and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40925      Document: 00512999820      Page: 2   Date Filed: 04/09/2015


                                   No. 14-40925

that Sharbutt had not established that he was entitled to proceed under the
savings clause of § 2255(e), which allows a federal prisoner to challenge his
conviction under § 2241 if the remedies provided under § 2255 are “inadequate
or ineffective to test the legality of his detention.”
      A petitioner seeking to establish that his § 2255 remedy was inadequate
or ineffective must make a claim (i) “based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense” and that (ii) “was foreclosed by circuit law
at the time when the claim should have been raised in the petitioner’s trial,
appeal, or first § 2255 motion.” Reyes-Requena v. United States, 

,
904 (5th Cir. 2001).
      Because Sharbutt essentially claims that he is innocent of his sentence
under the Armed Career Criminal Act, rather than his offense of conviction,
he has failed to make the showing required by Reyes-Requena. Sharbutt’s
contention that Persaud v. United States, 

(2014), stands for the
proposition that sentencing enhancements based on ineligible prior convictions
are errors amenable to § 2241 relief is unavailing as Persaud is not a
substantive decision.
      The decision of the district court is AFFIRMED.




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