Robinette v. Wilson

United States Court of Appeals
for the Fifth Circuit

No. 19-10801
Summary Calendar

Phillip Robinette,

Petitioner—Appellant,

versus

Eric Wilson, Warden, Federal Medical Center Fort
Worth,

Respondent—Appellee.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-561

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Phillip Robinette, former federal prisoner # 26845-077, pleaded guilty
to one count of conspiracy to distribute or possess with intent to distribute
methamphetamine and Gamma Hydroxybutrate (GHB) and was sentenced

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
October 27, 2020

Lyle W. Cayce
Clerk
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No. 19-10801
2
to 240 months in prison. He appeals the dismissal of his 28 U.S.C. § 2241
petition on jurisdictional grounds. We review the dismissal de novo. Jeffers
v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Robinette’s § 2241 petition asserts claims concerning the validity and
legality of his conviction. A prisoner may use § 2241 to attack his conviction
and sentence if the remedy under 28 U.S.C. § 2255 is inadequate or
ineffective to challenge the legality of his detention. § 2255(e). A § 2241
petition cannot be used as a substitute for a § 2255 motion; Robinette must
show the inadequacy or ineffectiveness of a § 2255 motion by satisfying the
savings clause of § 2255. See § 2255(e); Jeffers, 253 F.3d at 830; Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Under that
clause, he must demonstrate that his petition raises a claim based on a
retroactively applicable Supreme Court decision that establishes that he may
have been convicted of a nonexistent offense and that the claim was
foreclosed when it should have been presented in his trial, direct appeal, or
original § 2255 motion. See Reyes-Requena, 243 F.3d at 904.
Robinette’s contention that the savings clause of § 2255(e) is available
to him because his challenges to the judgment of conviction have not been
reviewed previously on the merits is unavailing. See Jeffers, 253 F.3d at 830;
Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000). Also, to the extent he
argues that the actual innocence standard is an exception to the savings
clause, he has not established that actual innocence provides a gateway for
review of claims raised in a § 2241 petition. See McQuiggin v. Perkins, 569
U.S. 383, 386 (2013); Schlup v. Delo, 513 U.S. 298, 315 (1995). He otherwise
has not asserted or shown that he relies on a retroactively applicable Supreme
Court decision establishing that he may have been convicted of a nonexistent
offense. See Reyes-Requena, 243 F.3d at 904.
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No. 19-10801
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Thus, the district court did not err in concluding that § 2241 relief was
unavailable. See Jeffers, 253 F.3d at 830-31. Accordingly, the judgment of
the district court is AFFIRMED.
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