     Case: 15-30496      Document: 00513490761         Page: 1    Date Filed: 05/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30496
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 3, 2016
WILLIE J. GRIFFIN, JR.,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

CHARLES MAIORANA, Warden, Federal Correctional Institution Oakdale,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:14-CV-823


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Willie J. Griffin, Jr., federal prisoner # 04667-017, was convicted of
conspiracy to possess with intent to distribute cocaine and cocaine base and
possession with intent to distribute cocaine; he is serving a 240-month term of
imprisonment on each count. He now appeals the district court’s dismissal of
his 28 U.S.C. § 2241 petition.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 15-30496

      Griffin contends that the district court misapplied Reyes-Requena v.
United States, 243 F.3d 893, 901 (5th Cir. 2001), as the savings clause of 28
U.S.C. § 2255 permits challenges to erroneously applied statutory mandatory
minimum sentences. In addition, relying on Bond v. United States, 134 S. Ct.
2077 (2014), Griffin claims that his conviction under federal law is flawed and
that Florida state law was sufficient to prosecute his offense which, he argues,
involved purely local misconduct.      He also maintains that he is actually
innocent of the offense, in view of Alleyne v. United States, 133 S. Ct. 2151
(2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000), because the
indictment did not list the elements of drug quantity and type.
      We review the dismissal of a § 2241 petition de novo. See Pack v. Yusuff,
218 F.3d 448, 451 (5th Cir. 2000). A federal prisoner may attack the validity
of his conviction in a § 2241 petition if he can meet the requirements of the
savings clause of § 2255. Reyes-Requena, 243 F.3d at 901. The prisoner must
establish that the remedy provided under § 2255 would be “inadequate or
ineffective to test the legality of his detention.” § 2255(e); Reyes-Requena v.
United States, 243 F.3d 893, 901 (5th Cir. 2001). To make that showing, a
prisoner must make a claim (1) “based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been convicted
of a nonexistent offense” that (2) “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.
      We are not persuaded by Griffin’s contention that the savings clause
permits sentencing challenges. See In re Bradford, 660 F.3d 226, 230 (5th Cir.
2011) (“[A] claim of actual innocence of a [sentencing] enhancement is not a
claim of actual innocence of the crime of conviction and, thus, not the type of
claim that warrants review under § 2241.”). Further, Griffin’s reliance on a



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                                 No. 15-30496

purported concession by the Solicitor General in Persaud v. United States, 134
S. Ct. 1023 (2014), is misplaced. Persaud was not a substantive decision and,
therefore, does not support Griffin’s contention that the particular sentencing
errors he complains of are amenable to § 2241 relief in this case.
      Also without merit is Griffin’s argument that his claim based on Bond
falls within the savings clause. In Bond, the Supreme Court held that the
Chemical Weapons Convention Implementation Act did not reach a “purely
local crime” consisting of “an amateur attempt by a jilted wife to injure her
husband’s lover.” 134 S. Ct. at 2083. The nature of the statute in Bond bears
no resemblance to the controlled substance statutes at issue here, and the
decision does not establish that Griffin may have been convicted of a
nonexistent offense. See Reyes-Requena, 243 F.3d at 904.
      Further, insofar as Griffin contends that he should be permitted to file a
§ 2241 petition because Alleyne and Apprendi meet the parameters of the
savings clause, he is mistaken. This court has held that Alleyne does not apply
retroactively to cases on collateral review. United States v. Olvera, 775 F.3d
726, 730 (5th Cir. 2015).      Further, both Alleyne and Apprendi address
sentencing issues and have no effect on whether the facts of Griffin’s case
would support his convictions for the substantive offenses, nor do they support
the contention that he was convicted of a nonexistent offense. See Alleyne, 133
S. Ct. at 2163; Apprendi, 530 U.S. at 490; Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002).
      Finally, even though Griffin advanced claims based on Moncrieffe v.
Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276
(2013) in the district court, he has not briefed a contention based on Moncrieffe
or Descamps on appeal. He therefore has therefore abandoned those claims.
See Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999).



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                              No. 15-30496

     The judgment of the district court is AFFIRMED. Griffin’s motion for
the appointment of counsel is DENIED.




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