     Case: 10-60700 Document: 00511476960 Page: 1 Date Filed: 05/13/2011




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

                                                 FILED
                                                                            May 13, 2011
                                     No. 10-60700
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHN ALVIN PAYNE,

                                                   Petitioner-Appellant
v.

BRUCE PEARSON, Warden,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:10-CV-117


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       John Alvin Payne, federal prisoner # 85849-012, is serving a 50-year
sentence for a conviction under the continuing criminal enterprise statute; four
counts of distribution of cocaine; and three counts of structuring financial
transactions to evade income reporting requirements. Payne filed a 28 U.S.C.
§ 2241 petition arguing that his counsel was ineffective for failing to argue “that
fronting drugs [does] not constitute [a] managerial relationship for a conviction”
under the continuing criminal enterprise statute. The district court determined



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60700 Document: 00511476960 Page: 2 Date Filed: 05/13/2011

                                   No. 10-60700

that Payne could not proceed under § 2241 because his claim did not satisfy the
requirements of the savings clause of 28 U.S.C. § 2255(e). The district court thus
dismissed Payne’s § 2241 petition as frivolous and to the extent it was construed
as a § 2255 motion, the district court dismissed it for lack of jurisdiction.
      Section 2255 provides the main vehicle to raise a collateral challenge to a
federal sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2255 relief is hence the appropriate remedy for “error[s] that occurred at or prior
to sentencing.” Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,1113 (5th Cir.
1990) (internal quotation marks and citation omitted). In contrast, § 2241 is
properly used to raise a challenge to “the manner in which a sentence is
executed.” Tolliver, 211 F.3d at 877. A petition filed under § 2241 that raises
errors “that occurr[ed] at trial or sentencing is properly construed [as arising]
under § 2255.” Id. at 877-78. Payne is challenging alleged errors that happened
at trial. As such, Payne’s claim must be raised in a § 2255 motion. See Cox, 911
F.2d at 1113.
      If a prisoner can demonstrate that the § 2255 remedy would be
“’inadequate or ineffective to test the legality of [the prisoner’s] detention,’” he
may be permitted to bring a habeas corpus claim pursuant to § 2241 under the
savings clause. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001) (quoting § 2255).
      [T]he savings clause of § 2255 applies to 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.

Id. at 904. Payne has not shown that he is entitled to proceed under § 2241
based on the savings clause of § 2255(e). See Pack v. Yusuff, 218 F.3d 448,
452-53 (5th Cir 2000). The judgment of the district court is AFFIRMED.




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