Conference Calendar GENE POLK v. FREDRICK MENIFEE, Warden

* 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should not be published and is not precedent except under the limited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. 07-30952
Conference Calendar
GENE POLK
Petitioner-Appellant
v.
FREDRICK MENIFEE, Warden
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:07-CV-1309
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Gene Polk, federal prisoner # 20151-039, appeals the district court’s
dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 application, in which he
challenged his convictions of conspiracy to commit a drug offense, intentional
killing during a drug offense, and using or carrying a firearm in connection with
a drug offense. Polk argues that his claims fall within the savings clause of
28 U.S.C. § 2255(e) because the ruling on his § 2255 motion denying his
United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2008
Charles R. Fulbruge III
Clerk

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challenge based on Richardson v. United States, 526 U.S. 813 (1999), as
harmless error makes § 2255 inadequate to test the legality of his sentence
under Ring v. Arizona, 536 U.S. 584 (2002).
A § 2241 application attacking custody resulting from a federally imposed
sentence may be considered only where the petitioner establishes that § 2255 is
“inadequate or ineffective to test the legality of his detention.” § 2255(e); Jeffers
v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). To show that § 2255 was
rendered inadequate or ineffective in his case, Polk must show 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 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, 904 (5th Cir. 2001).
By his own admission, Polk’s challenge under Richardson to the legality
of his conviction was raised in his initial § 2255 motion in the Eastern District
of Michigan, the district in which he was convicted and sentenced. His
argument was not foreclosed under Sixth Circuit law. See Murr v. United States,
200 F.3d 895, 905-06 (6th Cir. 2000) (holding that Richardson challenges could
be retroactively applied on collateral review in a § 2255 motion). That Polk
brought a prior unsuccessful § 2255 motion raising this claim and that he would
now not be able to meet the requirements for filing a successive § 2255 motion
raising this claim does not render § 2255 an inadequate remedy. See Jeffers, 253
F.3d at 830.
Polk has also not shown that his claim that his conviction and sentence
violate Ring comports with the savings clause criteria because the Supreme
Court has held that Ring does not apply retroactively to cases already final on
direct review. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004). The

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judgment of the district court dismissing Polk’s application for lack of
jurisdiction is AFFIRMED.

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