Terry Stewart v. Marcus Martin


UNPUBLISHED OPINION FILED. [13-60194 Affirmed ] Judge: FPB , Judge: EBC , Judge: PRO Mandate pull date is 12/02/2013 [13-60194]

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Case: 13-60194 Document: 00512400375 Page: 1 Date Filed: 10/08/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 13-60194 Summary Calendar October 8, 2013 Lyle W. Cayce Clerk TERRY W. STEWART, Petitioner-Appellant v. MARCUS MARTIN, Warden, Respondent-Appellee Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:13-CV-4 Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Terry W. Stewart, federal prisoner # 17057-075, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his 2001 conviction in the Western District of North Carolina on multiple counts of conspiracy, mail fraud, wire fraud, and money laundering. In his petition, Stewart alleged that the trial court violated his Sixth Amendment rights when it quashed his subpoena of codefendant Phillip Vaughan and denied his request to introduce Vaughan’s hearsay statements at trial. According to Stewart, his claims were properly * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 13-60194 Document: 00512400375 Page: 2 Date Filed: 10/08/2013 No. 13-60194 brought under § 2241 via the savings clause of 28 U.S.C. § 2255 because he was asserting a claim of actual innocence. A federal prisoner can proceed via § 2241 only if he shows that relief under § 2255 is inadequate or ineffective, which in turn requires him to demonstrate under the savings clause that his claim (i) is based on a retroactively applicable Supreme Court decision which established that he may have been convicted of a nonexistent offense and (ii) was foreclosed by circuit law at the time when the claim should have been raised in his trial, direct appeal, or first § 2255 motion. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Stewart has failed to make the requisite showing. He has also not shown that his claim of actual innocence provides an exception to the requirement that a petitioner first satisfy the savings clause of § 2255 in order to challenge his conviction and sentence in a § 2241 petition. Therefore, the district court did not err in concluding that Stewart could not bring his claims in a § 2241 petition. See Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001). The district court also did not err in concluding that, to the extent Stewart’s petition could be construed as a § 2255 motion, the court lacked jurisdiction. See § 2255(a); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir. 1987). Accordingly, the district court’s judgment is AFFIRMED. 2

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