Filed: Aug. 16, 2019
Latest Update: Mar. 03, 2020
Summary: Case: 18-11575 Document: 00515079652 Page: 1 Date Filed: 08/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-11575 FILED Summary Calendar August 16, 2019 Lyle W. Cayce Clerk MASOUD BAMDAD, Petitioner - Appellant v. ERIC D. WILSON, Warden, Respondent - Appellee Appeals from the United States District Court for the Northern District of Texas USDC No. 4:18-CV-884 Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: *
Summary: Case: 18-11575 Document: 00515079652 Page: 1 Date Filed: 08/16/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-11575 FILED Summary Calendar August 16, 2019 Lyle W. Cayce Clerk MASOUD BAMDAD, Petitioner - Appellant v. ERIC D. WILSON, Warden, Respondent - Appellee Appeals from the United States District Court for the Northern District of Texas USDC No. 4:18-CV-884 Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * ..
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Case: 18-11575 Document: 00515079652 Page: 1 Date Filed: 08/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11575 FILED
Summary Calendar August 16, 2019
Lyle W. Cayce
Clerk
MASOUD BAMDAD,
Petitioner - Appellant
v.
ERIC D. WILSON, Warden,
Respondent - Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-884
Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Masoud Bamdad, federal prisoner # 47237-112 and proceeding pro se,
appeals the dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition,
through which Bamdad challenged the validity of his 2010 conviction and
sentence for distribution of controlled substances, in violation of 21 U.S.C.
§ 841. The district court concluded Bamdad had not demonstrated he was
entitled to proceed under § 2241 in lieu of seeking relief through what would
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 18-11575
have been a second (successive) 28 U.S.C. § 2255 motion because he had not
shown his § 2241 claims fell within § 2255(e)’s “savings clause”. For the
following reasons, the court did not err in that conclusion. See Christopher v.
Miles,
342 F.3d 378, 381 (5th Cir. 2003).
As is well-established, a § 2241 petition and a § 2255 motion “are distinct
mechanisms for seeking post-conviction relief”. Pack v. Yusuff,
218 F.3d 448,
451 (5th Cir. 2000). Although a collateral challenge to a federal prisoner’s
conviction and sentence is properly pursued under § 2255, not § 2241,
id., a
prisoner, through § 2255(e)’s “savings clause”, may challenge the basis of his
custody with a § 2241 petition if he shows the remedy under § 2255 “is
inadequate or ineffective to test the legality of his detention”, 28 U.S.C.
§ 2255(e); Reyes-Requena v. United States,
243 F.3d 893, 901 (5th Cir. 2001).
To invoke the “savings clause”, however, a prisoner must present a claim: “(i)
that is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent
offense and (ii) that 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, 243 F.3d at 904.
Bamdad’s invocation of Burrage v. United States,
571 U.S. 204 (2014),
fails to bring his claim within the savings clause because he contends he was
charged, but does not contend he was “convicted”, of a nonexistent offense. See
Reyes-Requena, 243 F.3d at 904. Bamdad otherwise fails to contend he meets
the Reyes-Requena criteria. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th
Cir. 1993). Insofar as Bamdad contests Reyes-Requena’s continuing viability,
he cites no “intervening change in the law, such as by a statutory amendment,
or the Supreme Court, or our en banc court” invalidating or abrogating Reyes-
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No. 18-11575
Requena. See United States v. Quiroga-Hernandez,
698 F.3d 227, 229 (5th Cir.
2012) (internal quotations and citation omitted).
To the extent Bamdad suggests he may seek relief under § 2241 because
his previous § 2255 motion was unsuccessful, our court has held “merely failing
to succeed in a section 2255 motion does not establish the inadequacy or
ineffectiveness of the section 2255 remedy”.
Pack, 218 F.3d at 453 (citation
omitted). Bamdad’s contention that the statutory restrictions on successive
§ 2255 motions violate the Suspension Clause, U.S. Const., art. 1, § 9, cl. 2, is
also unavailing. Wesson v. United States Penitentiary Beaumont, Tex.,
305
F.3d 343, 347 (5th Cir. 2002) (citing
Reyes-Requena, 243 F.3d at 901 n.19); see
also Felker v. Turpin,
518 U.S. 651, 663–64 (1996) (28 U.S.C. § 2254 case).
AFFIRMED.
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