Virgil Rivers-Bey v. Frank Lara, Warden

Filing

UNPUBLISHED OPINION FILED. [16-40030 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 04/24/2017 [16-40030]

Case: 16-40030

Document: 00513895041

Page: 1

Date Filed: 03/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40030
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 2, 2017
Lyle W. Cayce
Clerk

VIRGIL RIVERS-BEY,
Petitioner-Appellant
v.

FRANCISCO LARA, WARDEN,
FEDERAL CORRECTIONAL COMPLEX-BEAUMONT, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:15-CV-270
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Respondent-Appellee Virgil Rivers-Bey, federal prisoner # 81378-158,
appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition,
contending that (1) his conviction for unlawful use of a firearm is based on an
improper amendment of the indictment; (2) he is actually innocent of the
unlawful use of a firearm because there was insufficient evidence to show that

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40030

Document: 00513895041

Page: 2

Date Filed: 03/02/2017

No. 16-40030
he actively employed the firearm; (3) his trial and appellate counsel were
ineffective for failing to raise these contentions and for failing to urge that the
district court should have dismissed his charge of unlawful use of a firearm
when it dismissed his conviction for being a felon in possession of a firearm; (4)
his conviction has resulted in a miscarriage of justice; and (5) he has been
convicted of a nonexistent offense.
Under § 2241, we review findings of fact for clear error and conclusions
of law de novo. Garland v. Roy, 615 F.3d 391, 396 (5th Cir. 2010); Christopher
v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). Because Rivers-Bey’s § 2241 claims
attacked the validity of his conviction, the district court did not err in
determining that the claims would be properly brought in a 28 U.S.C. § 2255
motion. See Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005); Pack
v. Yusuff, 218 F.3d 448, 451-52 (5th Cir. 2000). The district court did not err
in holding that Rivers-Bey failed to meet his burden of showing that the § 2255
remedy is inadequate or ineffective by identifying a retroactive decision that
changed circuit law. See § 2255(e); see Reyes-Requena v. United States, 243
F.3d 893, 901 (5th Cir. 2001) (stating that the savings clause of § 2255 allows
a federal prisoner to attack the legality of his conviction or sentence in a § 2241
petition if he can show that the remedies provided under § 2255 are
“inadequate or ineffective to test the legality of his detention”). The district
court’s judgment is AFFIRMED.

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