Nicholas Deangelis v. N. Vasquez, Warden

Filing

UNPUBLISHED OPINION FILED. [17-40380 Affirmed ] Judge: PEH, Judge: EHJ, Judge: JES. Mandate issue date is 05/29/2018 [17-40380]

Case: 17-40380

Document: 00514418889

Page: 1

Date Filed: 04/06/2018

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

FILED

No. 17-40380
Summary Calendar

April 6, 2018
Lyle W. Cayce
Clerk

NICHOLAS DEANGELIS,
Petitioner-Appellant
v.
N. VASQUEZ, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:14-CV-213

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Nicholas DeAngelis, federal prisoner # 71691-004, appeals the dismissal
of his 28 U.S.C. § 2241 habeas application challenging his convictions for:
(1) eight counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A);
(2) 10 counts of concealment money laundering in violation of § 1956(a)(1)(B);
and (3) three counts of money laundering in violation of 18 U.S.C. § 1957.
DeAngelis argues that he satisfied the standard set forth in Reyes-Requena v.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40380

Document: 00514418889

Page: 2

Date Filed: 04/06/2018

No. 17-40380
United States, 243 F.3d 893, 904 (5th Cir. 2001), because United States v.
Santos, 553 U.S. 507 (2008), is retroactively applicable to cases on collateral
review and he could not have raised a Santos claim during his trial, appeal, or
the one-year time period under 28 U.S.C. § 2255(f). He also claims that, in
light of Santos, he is actually innocent because he was convicted of nonexistent
offenses.
A prisoner challenging the validity of his conviction ordinarily must do
so under § 2255 and may proceed under § 2241 only if he shows that his § 2255
remedy was inadequate or ineffective. Tolliver v. Dobre, 211 F.3d 876, 877 (5th
Cir. 2000). To do so, he must raise a claim “(i) that is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner 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 the
petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena, 243 F.3d at
904.
DeAngelis has not satisfied the second prong of the Reyes-Requena
standard. The right in Santos was initially recognized on June 2, 2008. See
Santos, 553 U.S. at 507. DeAngelis’s claim would not have been foreclosed by
governing circuit law if he had filed his initial § 2255 motion before June 2,
2009, and, thus, is not cognizable in a § 2241 petition. See Reyes-Requena,
243 F.3d at 904; § 2255(f)(3). DeAngelis’s actual innocence argument under
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), is unavailing.
AFFIRMED.

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