Case: 19-60530     Document: 00515589913         Page: 1     Date Filed: 10/05/2020




              United States Court of Appeals
                   for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      October 5, 2020
                                  No. 19-60530                         Lyle W. Cayce
                                Summary Calendar                            Clerk



   David Poindexter,

                                                           Petitioner—Appellant,

                                       versus

   Cheron Nash, Warden, Federal Correctional Institute
   Yazoo City Medium,

                                                           Respondent—Appellee.


                  Appeal from the United States District Court
                    for the Southern District of Mississippi
                            USDC No. 3:18-CV-150


   Before King, Smith, and Wilson, Circuit Judges.
   Per Curiam:*
          David Poindexter, federal prisoner # 13724-076, was convicted of
   armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); killing a
   person in avoiding or attempting to avoid apprehension for the bank robbery,


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                    No. 19-60530


   in violation of § 2113(e); using and carrying a firearm during the robbery, in
   violation of 18 U.S.C. § 924(c); assault with a dangerous weapon with intent
   to do bodily harm within the special territorial jurisdiction of the United
   States, in violation of 18 U.S.C. § 113(c); unlawfully seizing and abducting a
   person within the special territorial jurisdiction of the United States, in
   violation of 18 U.S.C. § 1201; and carrying and using a firearm during the
   kidnapping, in violation of § 924(c). United States v. Poindexter, 

,
   408 (6th Cir. 1995). He was sentenced to life imprisonment plus twenty-five
   years.

district court’s denial of his 28 U.S.C. § 2241 petition,
   challenging his conviction for killing a person in the course of avoiding and
   attempting to avoid apprehension for the bank robbery under § 2113(e)
   pursuant to the savings clause of 28 U.S.C. § 2255(e). In the district court,
   Poindexter argued that, in view of Elonis v. United States, 

   (2015), he was convicted of conduct that § 2113(e) does not make criminal
   because his indictment did not charge and the jury did not find that he had
   the specific intent to kill. In this court, he also relies on Rehaif v. United
   States, 

(2019), to support his argument.
          Where, as here, the district court dismisses a § 2241 petition on the
   pleadings, our review is de novo. See Pack v. Yusuff, 

, 451 (5th
   Cir. 2000). A petitioner can attack the validity of his conviction and sentence
   in a § 2241 petition only if he can meet the requirements of the “savings
   clause” of § 2255(e). Reyes-Requena v. United States, 

, 901 (5th
   Cir. 2001). The petitioner must shoulder the burden of affirmatively showing
   that the remedy under § 2255 would be “inadequate or ineffective to test the
   legality of his detention.” § 2255(e); 

. One
   makes this showing by establishing that his claim (1) “is based on a
   retroactively applicable Supreme Court decision which establishes that the
   petitioner may have been convicted of a nonexistent offense” and (2) “was



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                                     No. 19-60530


   foreclosed by circuit law at the time when the claim should have been raised
   in the petitioner's trial, appeal, or first § 2255 motion.” 

.
          Neither Elonis nor Rehaif interpreted the requirements of an offense
   pursuant to § 2113(e), let alone mandated that § 2113(e) is a specific intent
   crime. See Elonis, 

; see also Rehaif, 

. The
   decisions in Elonis and Rehaif, in effect, did not address § 2113(e), but rather
   interpreted components of materially different crimes. See Elonis, 

(considering 18 U.S.C. § 875(c)); 

   (considering 18 U.S.C. §§ 922(g) and 924(a)(2)).           Moreover, we have
   already concluded that Elonis did not mandate that all federal statutes be
   interpreted as specific intent crimes. See United States v. Petras, 

,
   165-66 (5th Cir. 2018).
          Accordingly, Poindexter has not shown that he may have been
   convicted of a nonexistent offense in light of Elonis or Rehaif.          Thus,
   regardless whether Elonis or Rehaif applies retroactively or his instant
   challenge to § 2113(e) was foreclosed, Poindexter has not established that the
   district court erred in determining that he did not meet the requirements of
   the savings clause of § 2255(e). See § 2255(e); 

.
          Accordingly, the judgment of the district court is AFFIRMED.




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