Ricky Dority v. Keith Roy

Filing

UNPUBLISHED OPINION FILED. [10-40288 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 12/29/10. [10-40288]

Download PDF
Ricky Dority v. KeithCase: 10-40288 Roy Document: 00511330510 Page: 1 Date Filed: 12/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-40288 S u m m a r y Calendar December 22, 2010 Lyle W. Cayce Clerk R I C K Y LEON DORITY, P e titio n e r-A p p e lla n t v. W A R D E N KEITH ROY, 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 Eastern District of Texas U S D C No. 5:09-CV-57 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* O N PETITION FOR PANEL REHEARING The petition is DENIED and the following opinion substituted for the o r ig in a l: R ic k y Leon Dority, federal prisoner # 03636-063, appeals the dismissal of a 28 U.S.C. § 2241 petition challenging his 235-month sentence for being a felon in possession of a firearm. Dority argues that he is actually innocent of his s e n te n c e under the Armed Career Criminal Act because his prior conviction for 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 10-40288 Document: 00511330510 Page: 2 Date Filed: 12/22/2010 No. 10-40288 a 1984 escape from a penal institution used to enhance his sentence is not a v io le n t felony in light of Chambers v. United States, 129 S. Ct. 687, 693 (2009). Dority contends that his enhanced sentence is illegal because he does not have t h r e e previous convictions for a violent felony or a serious drug offense, and he a s s e r t s that he is entitled to § 2241 relief under the savings clause of 28 U.S.C. § 2255(e). Section 2255 provides the primary means of collaterally attacking a fe d e r a l sentence based on errors that occurred at or prior to sentencing. Padilla v . United States, 416 F.3d 424, 425-26 (5th Cir. 2005). We will consider Dority's § 2241 petition only if he establishes that § 2255 is inadequate or ineffective to t e s t the legality of his detention. See id. at 426. Dority must affirmatively e s t a b lis h that § 2255 is an inadequate or ineffective remedy. See id. This r e q u ir e s a showing (i) that his claim "is based on a retroactively applicable S u p r e m e Court decision which establishes that the petitioner may have been c o n v ic t e d of a nonexistent offense" and (ii) that the claim "was foreclosed by c ir c u it law at the time when the claim should have been raised in the petitioner's t r ia l, appeal, or first § 2255 motion." Reyes-Requena v. United States, 243 F.3d 8 9 3 , 904 (5th Cir. 2001). Dority's claim fails the first prong of the Reyes-Requena test as he cannot e s t a b lis h that his conviction for being a felon in possession of a firearm was for a nonexistent offense. Analogously, we have held that a claim of actual in n o c e n c e of a career offender enhancement is not a claim of actual innocence of t h e crime of conviction and, thus, not the type of claim that warrants review u n d e r § 2241. Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000); see also P a d illa , 416 F.3d at 426-27 (holding that challenge to the validity of an e n h a n c e d sentence did not fall under the savings clause). Dority's challenge to h is armed career criminal enhancement fails for the same reasons. Dority has n o t shown that he is entitled to proceed under § 2241 based on the savings c la u s e of § 2255(e). The judgment of the district court is AFFIRMED. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?