Jimmy Torres v. T. Werlich

Filing

UNPUBLISHED OPINION FILED. [16-30292 Affirmed ] Judge: TMR , Judge: PRO , Judge: JWE Mandate pull date is 06/30/2017 [16-30292]

Case: 16-30292

Document: 00513985316

Page: 1

Date Filed: 05/09/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30292
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 9, 2017
Lyle W. Cayce
Clerk

JIMMY TORRES,
Petitioner-Appellant
v.

T. G. WERLICH, Warden, Federal Correctional Institution, Pollock,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:15-CV-2337
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Jimmy Torres, federal prisoner # 93181-280, appeals the dismissal of his
28 U.S.C. § 2241 petition. In his petition, he challenged the total term of
180 months of imprisonment imposed following his conviction for possession of
a firearm by a prohibited person, possession of a firearm by an illegal alien,
and 31 counts of making a false statement during the purchase of a firearm.
Torres argues that the district court’s imposition of consecutive terms of

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30292

Document: 00513985316

Page: 2

Date Filed: 05/09/2017

No. 16-30292
imprisonment renders his sentence unconstitutional. He also contends that
his petition meets the requirements of the savings clause of 28 U.S.C.
§ 2255(e).
Torres’s argument is a collateral attack of a federal sentence. Section
2255 is the primary mechanism for bringing such a claim. See Pack v. Yusuff,
218 F.3d 448, 452 (5th Cir. 2000). However, had his pleading been construed
as a § 2255 motion, the district court would have lacked jurisdiction to consider
it because Torres was convicted and sentenced in the United States District
Court for the Western District of Texas and he filed the pleading in the
Western District of Louisiana. § 2255(a), (e). Also, it would have been an
unauthorized successive § 2255 motion. See Leal Garcia v. Quarterman, 573
F.3d 214, 220 (5th Cir. 2009); Hooker v. Sivley, 187 F.3d 680, 681-82 (5th Cir.
1999); § 2244(b)(3)(A).
A § 2241 petition that attacks custody resulting from a federally imposed
sentence may be entertained under the savings clause if the petitioner
establishes that the § 2255 remedy is “inadequate or ineffective” to test the
legality of his detention.

§ 2255(e); see Reyes-Requena v. United States,

243 F.3d 893, 901 (5th Cir. 2001). To make this showing, Torres must establish
that his claims are based on a retroactively applicable Supreme Court decision
that establishes that he may have been convicted of a nonexistent offense, and
his claims were foreclosed by circuit law at the time of his trial, direct appeal,
or first § 2255 motion. See Reyes-Requena, 243 F.3d at 904. Torres has failed
to make the requisite showing.
AFFIRMED.

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