Willie King v. Rebecca Tamez

Filing

UNPUBLISHED OPINION FILED. [10-10120 Affirmed] Judge: EHJ , Judge: JES , Judge: EBC. Mandate pull date is 02/14/2011 [10-10120]

Willie King v. Rebeccaase: 10-10120 C Tamez

Document: 00511331152 Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10120 S u m m a r y Calendar December 23, 2010 Lyle W. Cayce Clerk

W I L L I E FRANK KING, P e titio n e r-A p p e lla n t v. W A R D E N REBECCA TAMEZ, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CV-564

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* W illie Frank King, federal prisoner # 29510-077, appeals the district c o u r t's denial of his 21 U.S.C. § 2241 petition, challenging his convictions for s e v e r a l drug-related crimes and resulting 328-month sentence. In his petition, K i n g alleged that he was denied his counsel of choice, in violation of his Sixth A m e n d m e n t rights as articulated in United States v. Gonzalez-Lopez, 548 U.S. 1 4 0 (2006). King argues that the district court erred in determining that he had

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 10-10120 Document: 00511331152 Page: 2 Date Filed: 12/23/2010 No. 10-10120 n o t met the requirements for proceeding under § 2241 pursuant to the savings c la u s e of 28 U.S.C. § 2255(e). To challenge the validity of his conviction and sentence through a § 2241 p e t it io n , King must affirmatively show that the remedy under § 2255 would be " in a d e q u a t e or ineffective to test the legality of his detention." § 2255(e);

R e y e s -R e q u e n a v. United States, 243 F.3d 893, 901 (5th Cir. 2001). This requires h im to make a showing of both actual innocence and retroactivity. Reyes-Requena, 243 F.3d at 903-04. Specifically, he must establish that his c la im (1) "is based on a retroactively applicable Supreme Court decision which e s t a b lis h e s that [he] may have been convicted of a nonexistent offense" and (2 ) "was foreclosed by circuit law at the time when the claim should have been r a is e d in [his] trial, appeal, or first § 2255 motion." Id. at 904. King devotes his brief to the argument that Gonzalez-Lopez should apply r e t r o a c t iv e ly to cases on collateral review. He makes no argument that he is a c t u a lly innocent. Moreover, Gonzalez-Lopez does not establish that his

c o n v ic t io n s are for nonexistent offenses. See 548 U.S. at 151-52. Therefore, we d o not reach the question whether Gonzalez-Lopez is retroactively applicable to c a s e s on collateral review because King cannot meet his burden regardless. See R e y e s -R e q u e n a , 243 F.3d at 904. The district court's judgment is AFFIRMED. See § 2255(h); 28 U.S.C. § 2244(b)(3)(C); Reyes-Requena, 243 F.3d at 897-98. King is CAUTIONED that future attempts to circumvent the successive-motion r e q u ir e m e n t s of § 2255 will invite the imposition of sanctions.

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