     Case: 10-41295     Document: 00511599156         Page: 1     Date Filed: 09/12/2011




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

                                                                            FILED
                                                                        September 12, 2011
                                     No. 10-41295
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KENNEY LEE MATHESON,

                                                  Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:10-CV-159


Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
        Kenney Lee Matheson, federal prisoner # 08281-003, appeals the dismissal
of his 28 U.S.C. § 2241 petition challenging his 2002 convictions in the Southern
District of Alabama for conspiracy to possess crack cocaine with the intent to
distribute and for possessing a firearm during a drug-trafficking offense. In his
petition, Matheson asserted that he was actually innocent of the conspiracy, that
the evidence was insufficient to establish a conspiracy, that the search warrant



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41295    Document: 00511599156      Page: 2   Date Filed: 09/12/2011

                                  No. 10-41295

in his case was based on false information, and that the prosecutor had
knowingly used fabricated evidence.
      As the district court determined, Matheson can proceed via § 2241 only if
he shows that relief under 28 U.S.C. § 2255 is inadequate, which in turn
requires him to demonstrate under the savings clause that his claim (i) is based
on a retroactively applicable Supreme Court decision which established that he
may have been convicted of a nonexistent offense and (ii) was foreclosed by
circuit law at the time when the claim should have been raised in his trial, direct
appeal, or first § 2255 motion. Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001). Although he conclusionally states that he relies on a
retroactively applicable Supreme Court case, Matheson does not cite any
Supreme Court decision which is retroactively applicable and which establishes
that he was convicted of a nonexistent offense, nor does he show that the claims
were “foreclosed” by the Eleventh Circuit at the time of his trial, direct appeal,
or first § 2255 motion. See id. To the extent that Matheson contends that the
actual innocence and miscarriage of justice standards provide an exception to the
requirement that a petitioner must qualify under the savings clause of § 2255
to challenge his conviction and sentence in a § 2241 petition, the claim fails as
we have consistently held that federal habeas law does not recognize a
freestanding actual innocence claim. See Foster v. Quarterman, 466 F.3d 359,
367-68 (5th Cir. 2006).
      The district court’s judgment is AFFIRMED.




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