     Case: 11-10657     Document: 00511835263         Page: 1     Date Filed: 04/25/2012




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

                                                                            FILED
                                                                           April 25, 2012
                                     No. 11-10657
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

GLENDA HALL,

                                                  Petitioner-Appellant

v.

JOE KEFFER, WARDEN,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-422


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Glenda Hall appeals the dismissal of a 28 U.S.C. § 2241 petition in which
she challenged her conviction for conspiracy to commit theft of government
funds, in violation of 18 U.S.C. § 371 and § 671, and wire fraud, in violation of
18 U.S.C. § 1341. Hall argued that she was convicted of a nonexistent offense
in light of Skilling v. United States, 130 S. Ct. 2896, 2907 (2010), which held that
the honest-services fraud statute, 18 U.S.C. § 1346, criminalizes only conduct
involving bribery and kickback schemes. Hall alleged that Skilling rendered her

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10657    Document: 00511835263       Page: 2   Date Filed: 04/25/2012

                                   No. 11-10657

actually innocent because her fraud offense did not involve bribery or kickbacks.
The district court dismissed the petition for lack of jurisdiction on the basis that
Hall failed to satisfy the “savings clause” of 28 U.S.C. § 2255.
      Under § 2241, we review factual findings for clear error and conclusions
of law de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). We may
affirm the district court’s judgment on any basis supported by the record. Berry
v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
      A § 2241 petition that attacks custody resulting from a federally imposed
sentence may be entertained under the savings clause of § 2255 if the petitioner
establishes that the remedy provided under § 2255 is “inadequate or ineffective”
to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir.
2000). The savings clause is applicable only to a claim that (i) “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and that (ii) “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 v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). The petitioner bears the “stringent”
burden of affirmatively showing that the § 2255 remedy is inadequate or
ineffective and that she is entitled to avail herself of the “limited exception”
found in the savings clause. Christopher, 342 F.3d at 382.
      Hall has not made such a showing. The record does not support that Hall’s
actual-innocence claim was foreclosed by circuit law at the time when the claim
could have been raised previously. To the contrary, the record shows that Hall
raised an actual-innocence claim specifically invoking Skilling in her first § 2255
motion and that the district court decided the claim on the merits; the district
court specifically considered whether Skilling established Hall’s actual innocence
and determined that it did not. Accordingly, Hall had an adequate and effective
opportunity to assert the present claim in her prior § 2255 motion. The fact that
the claim was unsuccessful – or that future § 2255 motions raising the claim

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                                   No. 11-10657

would be considered successive – does not establish that the § 2255 remedy is
inadequate or ineffective. See Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir.
2009); Pack, 218 F.3d at 452-53.
      Furthermore, the holding in Skilling does not support Hall’s claim that she
was convicted of a nonexistent offense. The Supreme Court held in Skilling that
§ 1346 criminalizes only bribery and kickback schemes. Skilling, 130 S. Ct. at
2933. However, Hall was convicted of wire fraud in violation of § 1341, and
there were no allegations that her fraud was based upon an honest-services
theory. Instead, the record shows that Hall was charged with, and convicted of,
conventional wire fraud under § 1341, i.e., Hall obtained tangible money or
property by means of false or fraudulent representations. Thus, the holding in
Skilling is neither relevant nor applicable to Hall.
      Because Hall has not shown that a previously unavailable Supreme Court
case has decriminalized her conduct, she cannot challenge her conviction in a
§ 2241 petition under the savings clause of § 2255. See Christopher, 342 F.3d at
382; Reyes-Requena, 243 F.3d at 903-04. Accordingly, she has not shown that
the district court erred in determining that she was not entitled to proceed under
the § 2255 savings clause. The judgment of the district court is AFFIRMED.




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