Summary
noting that the precedent under which the petitioner was convicted "was consistent with Rosemond"
Summary of this case from Sterling v. N'DiayeOpinion
No. 14-50636
01-06-2015
MAURICE GOREE, Petitioner - Appellant v. RACHEL CHAPA, Warden, FCI La Tuna, Respondent - Appellee
Summary Calendar Appeal from the United States District Court for the Western District of Texas
USDC No. 3:14-CV-107
Before SMITH, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Maurice Goree, federal prisoner # 36474-044, pleaded guilty in the United States District Court for the Eastern District of Missouri to two counts of aiding-and-abetting the armed robbery of a financial institution, in violation of 18 U.S.C. §§ 2, 2113(a) and (d), and one count of aiding-and-abetting the possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c). He filed a petition under 28 U.S.C. § 2241 in the United States District Court for the Western District of Texas, where he is incarcerated. The district court construed the petition as a 28 U.S.C. § 2255 motion and dismissed it for want of jurisdiction. Proceeding pro se, Goree challenges the dismissal.
He contends Rosemond v. United States, 134 S. Ct. 1240 (2014), requires reversing his conviction and sentence for aiding-and-abetting the possession of a firearm in furtherance of a crime of violence. Because Goree challenges the validity of his conviction, his petition was properly construed as a § 2255 motion. E.g., Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). He has not shown his claims could be brought in a § 2241 petition under the savings clause of § 2255(e) because, even if Rosemond applies retroactively, he has not established his claim was foreclosed previously. The law in the Eighth Circuit, the circuit in which he was convicted, was consistent with Rosemond and, in fact, was cited in Rosemond. 134 S. Ct. at 1249 (citing United States v. Akiti, 701 F.3d 883, 887 (8th Cir. 2012)).
Furthermore, Goree has not shown he was convicted of a nonexistent offense, because the record supports he had the foreknowledge required under Rosemond to be guilty of aiding and abetting his 18 U.S.C. § 924(c) offense. See, e.g., Christopher v. Miles, 342 F.3d 378, 382-83 (5th Cir. 2003). Thus, he has not demonstrated the remedy under § 2255 was inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255(e); Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Accordingly, the petition was properly dismissed because the district court lacked jurisdiction over the § 2255 motion, which could be filed, if at all, in the district where Goree was sentenced. E.g., Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citation omitted).
AFFIRMED.