     Case: 13-51123      Document: 00512733841         Page: 1    Date Filed: 08/14/2014




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

                                                                               FILED
                                    No. 13-51123                         August 14, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
JOHN LEE COCKERHAM, JR.,

                                                 Petitioner-Appellant

v.

RACHEL CHAPA, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CV-327


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       John Lee Cockerham, Jr., federal prisoner # 97305-180, appeals the
denial of his 28 U.S.C. § 2241 petition. His motion to file a supplemental brief
is granted.
       Cockerham contends that, in view of United States v. Santos, 553 U.S.
507 (2008), he is actually innocent of the offense of conspiring to commit money




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51123     Document: 00512733841      Page: 2    Date Filed: 08/14/2014


                                  No. 13-51123

laundering. He argues that the district court erred in determining that he
could not meet the requirements of the savings clause of 28 U.S.C. § 2255(e).
      In an appeal from the denial of habeas relief under § 2241, we review the
district court’s findings of fact for clear error and issues of law de novo. Jeffers
v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). We may affirm the district
court’s judgment on any ground supported by the record.                  Sojourner
T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
      Section 2255 provides the primary means of collaterally attacking a
federal sentence, and relief is granted for errors that occurred at trial or
sentencing. Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). Section
2241, on the other hand, is used to challenge “the manner in which a sentence
is executed.” Id. at 877. A petition filed under § 2241 that raises errors that
occurred at or prior to sentencing should be construed as a § 2255 motion.
Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005). However, under
the savings clause of § 2255, a § 2241 petition that attacks custody resulting
from a federally imposed sentence may be entertained if the petitioner shows
that the remedy provided under § 2255 is inadequate or ineffective to test the
legality of his detention.     Jeffers, 253 F.3d at 830; § 2255(e).        A prior
unsuccessful § 2255 motion or the inability to meet the requirements for filing
a successive § 2255 motion do not render the § 2255 remedy inadequate for
purposes of the savings clause. Tolliver, 211 F.3d at 878. To demonstrate that
§ 2255 is inadequate or ineffective, the petitioner must show that (1) his claims
are “based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent
offense,” and (2) his claims were “foreclosed by circuit law at the time when the
claim[s] should have been raised in [his] trial, appeal, or first § 2255 motion.”
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).             The



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                                 No. 13-51123

petitioner has the burden of affirmatively showing that the § 2255 remedy is
inadequate or ineffective. See Wesson v. United States Penitentiary Beaumont,
TX, 305 F.3d 343, 347 (5th Cir. 2002).
      Cockerham asserts that he could not have raised a claim based on Santos
in a timely-filed § 2255 motion. He contends that he became aware of evidence
supporting a Santos claim in February 2013, and as support for his contention,
he points to an affidavit that uses the term “proceeds” to refer to money
involved in the money laundering conspiracy.
      We are not convinced that Cockerham needed the affidavit to be alerted
to the existence of a claim based on Santos. Moreover, Cockerham could have
raised a claim based on Santos in his direct criminal appeal, in which he was
represented by counsel.
      In view of the foregoing, Cockerham has not shown that his claim based
on Santos was foreclosed by circuit law when he should have raised it, either
on direct appeal or in his first § 2255 motion. See Reyes-Requena, 243 F.3d at
904. Accordingly, the judgment of the district court is affirmed.
      AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED.




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