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UNPUBLISHED OPINION FILED.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]
Date Filed: 10/08/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
October 8, 2013
Lyle W. Cayce
TERRY W. STEWART,
MARCUS MARTIN, Warden,
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.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 10/08/2013
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.
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