     Case: 18-11575       Document: 00515079652         Page: 1     Date Filed: 08/16/2019




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

                                     No. 18-11575                            FILED
                                   Summary Calendar                    August 16, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
MASOUD BAMDAD,

                                                  Petitioner - Appellant

v.

ERIC D. WILSON, Warden,

                                                  Respondent - Appellee


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-884


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Masoud Bamdad, federal prisoner # 47237-112 and proceeding pro se,
appeals the dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition,
through which Bamdad challenged the validity of his 2010 conviction and
sentence for distribution of controlled substances, in violation of 21 U.S.C.
§ 841. The district court concluded Bamdad had not demonstrated he was
entitled to proceed under § 2241 in lieu of seeking relief through what would


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-11575

have been a second (successive) 28 U.S.C. § 2255 motion because he had not
shown his § 2241 claims fell within § 2255(e)’s “savings clause”.         For the
following reasons, the court did not err in that conclusion. See Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003).
      As is well-established, a § 2241 petition and a § 2255 motion “are distinct
mechanisms for seeking post-conviction relief”. Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000). Although a collateral challenge to a federal prisoner’s
conviction and sentence is properly pursued under § 2255, not § 2241, id., a
prisoner, through § 2255(e)’s “savings clause”, may challenge the basis of his
custody with a § 2241 petition if he shows the remedy under § 2255 “is
inadequate or ineffective to test the legality of his detention”, 28 U.S.C.
§ 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
To invoke the “savings clause”, however, a prisoner must present 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.
      Bamdad’s invocation of Burrage v. United States, 571 U.S. 204 (2014),
fails to bring his claim within the savings clause because he contends he was
charged, but does not contend he was “convicted”, of a nonexistent offense. See
Reyes-Requena, 243 F.3d at 904. Bamdad otherwise fails to contend he meets
the Reyes-Requena criteria. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th
Cir. 1993). Insofar as Bamdad contests Reyes-Requena’s continuing viability,
he cites no “intervening change in the law, such as by a statutory amendment,
or the Supreme Court, or our en banc court” invalidating or abrogating Reyes-




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                                 No. 18-11575

Requena. See United States v. Quiroga-Hernandez, 698 F.3d 227, 229 (5th Cir.
2012) (internal quotations and citation omitted).
      To the extent Bamdad suggests he may seek relief under § 2241 because
his previous § 2255 motion was unsuccessful, our court has held “merely failing
to succeed in a section 2255 motion does not establish the inadequacy or
ineffectiveness of the section 2255 remedy”. Pack, 218 F.3d at 453 (citation
omitted). Bamdad’s contention that the statutory restrictions on successive
§ 2255 motions violate the Suspension Clause, U.S. Const., art. 1, § 9, cl. 2, is
also unavailing. Wesson v. United States Penitentiary Beaumont, Tex., 305
F.3d 343, 347 (5th Cir. 2002) (citing Reyes-Requena, 243 F.3d at 901 n.19); see
also Felker v. Turpin, 518 U.S. 651, 663–64 (1996) (28 U.S.C. § 2254 case).
      AFFIRMED.




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