     Case: 13-10256       Document: 00512444698         Page: 1     Date Filed: 11/18/2013




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

                                                                            FILED
                                                                        November 18, 2013
                                     No. 13-10256
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL LEWIS,

                                                  Petitioner-Appellant

v.

WARDEN CHANDLER,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-53


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Michael Lewis appeals the district court’s dismissal of a 28 U.S.C. § 2241
petition he filed challenging his 240-month sentence for distributing cocaine
base. In that petition, Lewis argued, pursuant to United States v. Booker, 543
U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), that he should
have been held accountable only for the amount of drugs alleged in the
indictment. He asserted that he was actually innocent of his sentence because
it was based on drug amounts neither admitted by him nor found beyond a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-10256     Document: 00512444698      Page: 2    Date Filed: 11/18/2013

                                  No. 13-10256

reasonable doubt by a jury. He also asserted that his sentence was erroneously
enhanced based on unproven conduct that was unrelated to his offense.
      On appeal, Lewis reiterates the merits of his habeas claims. Lewis raises
only one argument challenging the district court’s grounds for dismissing his
petition. He complains that the court failed to give reasons for finding that it
lacked jurisdiction to consider his claims. That argument lacks merit. The
district court clearly indicated that it was dismissing Lewis’s petition for lack of
jurisdiction because his claims arose under 28 U.S.C. § 2255 and Lewis had not
established his eligibility to proceed under the savings clause in § 2255(e).
      As a general rule, a federal prisoner who seeks to collaterally challenge the
legality of his conviction or sentence must file a § 2255 motion. Padilla v. United
States, 416 F.3d 424, 425-26 (5th Cir. 2005). Such claims may be raised in a
§ 2241 petition under the savings clause of § 2255(e) only if the prisoner shows
that the § 2255 remedy is “inadequate or ineffective to test the legality of his
detention.” § 2255(e). To make that showing, the prisoner must raise “a claim
of actual innocence (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 v. United States, 243 F.3d 893, 904 (5th Cir. 2001)
(internal quotation marks and citation omitted).
      Although Lewis asserted that he was actually innocent of his sentence
based on Booker and Apprendi, neither of those decisions has been made
retroactively applicable to cases on collateral review. Padilla, 416 F.3d at 427.
Nor do those decisions have any bearing on whether the facts in Lewis’s case
supported his conviction of the substantive offense. Id. As Lewis did not
establish that his § 2255 remedy was ineffective, the district court did not err in
dismissing his § 2241 petition.
      The judgment of the district court is AFFIRMED.

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