Terrell Mickels v. K. Ask-Carlson, et al

Filing

UNPUBLISHED OPINION FILED. [14-30524 Affirmed ] Judge: WED , Judge: EHJ , Judge: HRD Mandate pull date is 11/24/2014 [14-30524]

Case: 14-30524

Document: 00512789097

Page: 1

Date Filed: 10/01/2014

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

FILED
No. 14-30524
Summary Calendar

October 1, 2014
Lyle W. Cayce
Clerk

TERRELL EMIL MICKELS, also known as Terrence Emil Nickson,
Plaintiff-Appellant
v.
K. ASK-CARLSON; OSCAR JOLIMO PALACIOS; MAURICE SANDFORD;
JOHN T. MOORE; RICK GASTINE,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:13-CV-2988
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
Terrell Emil Mickels, federal prisoner # 11733-003, appeals the
dismissal of his 28 U.S.C. § 2241 petition for failure to satisfy the savings
clause of 28 U.S.C. § 2255(e). Mickels challenged his 188-month sentence for
possession with intent to distribute crack cocaine. He contended, based on
Alleyne v. United States, 133 S. Ct. 2151 (2013), that his statutory minimum

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30524

Document: 00512789097

Page: 2

Date Filed: 10/01/2014

No. 14-30524
sentence was unconstitutionally increased based on facts not admitted or
proved beyond a reasonable doubt.
We review a district court’s dismissal of a § 2241 petition de novo. Pack
v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Since Mickels sought to attack the
validity of his sentence, he had to meet the requirements of the savings clause
of § 2255(e) to raise his claim in a § 2241 petition. See § 2255(e). To meet the
requirements of the savings clause of § 2255(e), Mickels had to show that his
claim was “(i) . . . based on a retroactively applicable Supreme Court decision
which establishes that [he] . . . may have been convicted of a nonexistent
offense and (ii) that was foreclosed by circuit law at the time when the claim
should have been raised in [his] . . . trial, appeal, or first § 2255 motion.” ReyesRequena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
In Alleyne, the Supreme Court held that any fact that increases a
defendant’s mandatory minimum sentence must be submitted to a jury to be
proved beyond a reasonable doubt. 133 S. Ct. at 2163. Since the decision in
Alleyne implicates the validity of a sentence, Alleyne does not establish that
Mickels was convicted of a nonexistent offense. See Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002). Therefore, the district court
did not err by dismissing Mickels’s § 2241 petition for failure to satisfy the
savings clause of § 2255(e).
The judgment of the district court is AFFIRMED.

2