Richard Porter v. John Fox, et al

Filing

UNPUBLISHED OPINION FILED. [16-40835 Affirmed] Judge: WED, Judge: EBC, Judge: GJC. Mandate pull date is 09/11/2017 [16-40835]

Case: 16-40835

Document: 00514080671

Page: 1

Date Filed: 07/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40835
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 19, 2017
Lyle W. Cayce
Clerk

RICHARD PORTER,
Petitioner-Appellant
v.

JOHN B. FOX, Warden; UNITED STATES DEPARTMENT OF JUSTICE,
Respondents-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:13-CV-269
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Richard Porter, federal prisoner # 27583-034, appeals the dismissal of
his petition under 28 U.S.C. § 2241. Porter is serving life and other sentences
for drug-trafficking and firearm crimes, including using a firearm to commit
murder during and in relation to a drug-trafficking crime and discharging a
firearm during and in relation to a drug-trafficking crime, violations of 18
U.S.C. § 924(c) and other subsections of § 924. He contends that he may

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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challenge his convictions under § 2241 because he meets the requirements set
forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001), and
28 U.S.C. § 2255(e). He argues that, in light of the Supreme Court’s decisions
in United States v. Ressam, 553 U.S. 272 (2008), and Rosemond v. United
States, 134 S. Ct. 1240 (2014), he was convicted of non-existent violations of
§ 924(c).
We review de novo the dismissal of a § 2241 petition. Pack v. Yusuff, 218
F.3d 448, 451 (5th Cir. 2000). Generally, claims of trial and sentencing errors
are not properly raised in a § 2241 petition. Tolliver v. Dobre, 211 F.3d 876,
877-78 (5th Cir. 2000). However, a § 2241 petition that attacks a federal
conviction may be considered if the claims are “based on a retroactively
applicable Supreme Court decision which establishes that petitioner may have
been convicted of a nonexistent offense,” and if the claims were previously
“foreclosed by circuit law.” Reyes-Requena, 234 F.3d at 904. Porter must
therefore prove that, in light of “a retroactively applicable Supreme Court
decision, he was convicted for conduct that did not constitute a crime.” Jeffers
v. Chandler, 253 F.3d 827, 831 (5th Cir. 2001).
Porter’s reliance on Ressam and Rosemond affords him no relief, even if
it assumed that those decisions are retroactive. Ressam held that a violation
of 18 U.S.C. § 844(h)(2) required that an explosive be carried “during” a federal
felony. Ressam is not relevant because it concerned 18 U.S.C. § 844(h) rather
than § 924(c). Ressam, 553 U.S. at 274-75. Moreover, Porter was convicted of
using and carrying a firearm, “during” a drug-trafficking conspiracy.
Rosemond pertained to the proof required to convict a defendant of aiding and
abetting the use of a firearm during a drug crime. Rosemond, 134 S. Ct. at
1249. However, Porter was not charged with aiding and abetting but rather
with two counts of “knowingly” using and carrying a firearm and causing it to

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be discharged, resulting in a murder and an attempted murder. We have
already found the evidence sufficient to prove all of the charged violations of
§ 924(c). See United States v. Davis, 124 F. App’x 838, 843-33 (5th Cir. 2005).
Porter thus does not show that “he was convicted for conduct that did not
constitute a crime” in light of Ressam or Rosemond. Jeffers, 253 F.3d at 831;
see Reyes-Requena, 243 F.3d at 903-04.
The judgment is AFFIRMED.

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