Conference Calendar JACK RAY AUSTIN v. Paul Kastner

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-41253
Conference Calendar
JACK RAY AUSTIN
Petitioner-Appellant
v.
PAUL KASTNER
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:07-CV-122
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Jack Ray Austin, federal prisoner # 18077-076, is appealing the district
court’s dismissal of his 28 U.S.C. § 2241 habeas petition. Austin is challenging
his 18 U.S.C. § 924(c) conviction for brandishing a firearm in furtherance of a
bank robbery and the sentences imposed for his convictions for bank robbery and
for the § 924(c) offense. He argues that he should not be precluded from seeking
§ 2241 relief for violations of his constitutional rights based on the criteria
United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2008
Charles R. Fulbruge III
Clerk

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announced in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Section 2255 provides the primary means of collaterally attacking a
federal conviction and sentence, and relief is reserved for errors that occurred
at trial or sentencing. See Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.
2000). “However, § 2241 may be utilized by a federal prisoner to challenge the
legality of his or her conviction or sentence if he or she can satisfy the mandate
of the so-called § 2255 ‘savings clause.’” Reyes-Requena, 243 F.3d at 901. Under
the savings clause of § 2255(e), a federal prisoner may bring a writ of habeas
corpus under § 2241 if the § 2255 remedy is “inadequate or ineffective to test the
legality of his detention.” Id. (citing § 2255). The savings clause thus applies to
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.”
Id. at 904.
The court has determined that the requirements of the savings clause
under § 2255 do not violate the Suspension Clause or the Due Process Clause.
Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 346-47 (5th Cir. 2002).
Austin’s claim that Reyes-Requena impermissibly deprived him of his right to
seek habeas relief is without merit. Id.
Austin argues that he received an enhanced sentence in violation of his
Fifth and Sixth Amendment rights because the district court relied on factors
not admitted or proved to a jury. Austin relies on Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), to support his
argument. The holdings in Blakely or Apprendi are not retroactively applicable
to cases on collateral § 2241 review. See Wesson, 305 F.3d at 347; Padilla v.
United States, 416 F.3d 424, 426-27 (5th Cir. 2005). Further, a successful
argument regarding the enhancement of his sentence would not establish that

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Austin was convicted of a nonexistent offense. Padilla, 416 F.3d at 427. Austin
has not shown that this claim meets the criteria set out in Reyes-Requena.
Austin also argues that he is innocent of the § 924(c) offense because the
indictment did not charge the type of firearm used in furtherance of the bank
robbery, which was an element of the offense that was required to be proved or
admitted. Austin has not demonstrated that a Supreme Court decision has been
retroactively applied to support his assertion that he was convicted of a
nonexistent firearm offense. Austin has not demonstrated that this claim falls
within the savings clause of § 2255(e). See Reyes-Requena, 243 F.3d at 904. The
district court did not err in dismissing Austin’s § 2241 habeas petition.
AFFIRMED.

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