Summary
holding that Descamps and other cases which address sentencing issues had "...no effect on whether the facts of Whittaker's case would support his conviction for the substantive offense."
Summary of this case from Garcia-Valenzuela v. ButlerOpinion
No. 13-11280
07-01-2014
MIJKIA CARL WHITTAKER, Petitioner-Appellant v. RODNEY W. CHANDLER, Warden, Respondent-Appellee
Summary Calendar
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-793
Before HIGGINBOTHAM, DENNIS, and GRAVES, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Mijkia Carl Whittaker, federal prisoner # 30826-044, appeals the district court's denial of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2241. Whittaker challenged, relying on Alleyne v. United States, 133 S. Ct. 2151 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013), the enhancement of his sentence pursuant to the Armed Career Criminal Act. The district court denied relief, concluding that such allegations should be presented in a 28 U.S.C. § 2255 motion and that Whittaker 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) 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 v. United States, 243 F.3d 893, 900-01 (5th Cir. 2001). Both Alleyne, 133 S. Ct. at 2163, and Descamps, 133 S. Ct. at 2282, address sentencing issues and have no effect on whether the facts of Whittaker's case would support his conviction for the substantive offense. See Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002). Accordingly, neither Alleyne nor Descamps is a retroactively available Supreme Court decision indicating that Whittaker was convicted of a nonexistent offense. See id. The judgment of the district court is AFFIRMED.