Sean Carney v. USA

Filing

UNPUBLISHED OPINION ORDER FILED. [12-20262 Affirmed ] Judge: EGJ , Judge: JWE , Judge: JEG Mandate pull date is 03/11/2013; denying motion for bail pending appeal filed by Appellant Mr. Sean Michael Carney [7188963-3]; denying motion to dismiss appeal filed by Appellee USA [7181022-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [7181022-3] [12-20262]

Case: 12-20262

Document: 00512115417

Page: 1

Date Filed: 01/16/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-20262
Summary Calendar

January 16, 2013
Lyle W. Cayce
Clerk

SEAN MICHAEL CARNEY,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-3045

Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Sean Michael Carney, federal prisoner # 83492-180, appeals the dismissal
of his 28 U.S.C. § 2241 petition wherein he challenged his 2008 conviction for
possession with intent to distribute cocaine and possession of a firearm by a
convicted felon. The district court determined, inter alia, that Carney failed to
satisfy the savings clause of 28 U.S.C. § 2255.
The Government has moved for summary dismissal because no certificate
of appealability (COA) has issued or, alternatively, an extension of time to brief
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-20262
the merits. Because Carney filed his petition under § 2241, he need not obtain
a COA to appeal its dismissal. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th
Cir. 2001).
As a general rule, a federal prisoner who seeks to challenge collaterally the
legality of his conviction or sentence must file a § 2255 motion. Padilla v. United
States, 416 F.3d 424, 425-26 (5th Cir. 2005). Such claims may be raised in a
§ 2241 petition under the savings clause of § 2255(e) only if the prisoner shows
that the § 2255 remedy is “inadequate or ineffective to test the legality of his
detention.” § 2255(e).
Carney has not briefed any challenge to the district court’s determination
that he failed to show that his claims were based on a Supreme Court decision
that established that he might have been convicted of a nonexistent offense, as
required by Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
When an appellant fails to identify any error in the district court’s analysis, it
is the same as if he had not appealed that issue. Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). While pro se briefs are
afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), Carney
has not raised any challenge to the district court’s reasons for determining that
he is not entitled to proceed pursuant to the savings clause of § 2255(e). Thus,
any such arguments are deemed abandoned. See Brinkmann, 813 F.2d at 748.
For the first time on appeal, Carney argues that the Bureau of Prisons is
in violation of the federal judgment and sentence because, after the imposition
of his federal sentence, federal authorities improperly delivered him to state
authorities to begin serving a subsequently imposed state sentence. Because
this issue is raised for the first time on appeal, we need not consider it. See
Wilson v. Roy, 643 F.3d 433, 435 n.1 (5th Cir. 2011), cert. denied, 132 S. Ct. 1062
(2012). To the extent that Carney seeks to argue that Bond v. United States, 131
S. Ct. 2355 (2011), enables him to bring a § 2241 petition, he is mistaken. Bond
does not satisfy the savings clause of § 2255(e) because, inter alia, it does not
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establish that Carney may have been convicted of a nonexistent offense. See
Reyes-Requena, 243 F.3d at 904.
As Carney has not established that he is entitled to proceed under § 2241,
the district court’s judgment is AFFIRMED. We dispense with further briefing.
The Government’s motion for summary dismissal and alternative motion for an
extension of time to file a brief are DENIED. Carney’s motion for release
pending appeal also is DENIED.

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