     Case: 15-30282      Document: 00513543516         Page: 1    Date Filed: 06/10/2016




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


                                    No. 15-30282                                    FILED
                                  Summary Calendar                              June 10, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
NASIR ABDUL ALI, also known as Donnie Ray Reed,

                                                 Petitioner-Appellant

v.

MICHAEL D. CARVAJAL, Warden, United States Penitentiary Pollock,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:15-CV-173


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Nasir Abdul Ali, federal prisoner # 09596-042, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition challenging the life sentence
imposed following his 2005 conviction on multiple drug offenses. His petition
alleges that his mandatory life sentence was unconstitutional because his prior
convictions did not qualify as felony drug offenses for purposes of 21 U.S.C. §§
841(b)(1)(A) and 851.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30282     Document: 00513543516     Page: 2   Date Filed: 06/10/2016


                                  No. 15-30282

      As a general rule, a federal prisoner who seeks to collaterally challenge
his conviction or sentences must file a § 2255 motion in the sentencing court.
See Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005). A petition
for writ of habeas corpus filed pursuant to § 2241 is generally reserved for
challenges to the manner in which the sentence is being executed. There is an
exception, however, pursuant to the savings clause of § 2255. That clause
allows a federal prisoner to attack the legality of his conviction or sentence via
§ 2241 when relief under § 2255 is inadequate or ineffective. 28 U.S.C. §
2255(e); Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). We
have held that the § 2255 procedure is inadequate when a claim (i) is based on
a retroactively applicable Supreme Court decision which establishes that the
defendant may have been convicted of a nonexistent offense and (ii) was
foreclosed by circuit law at the time when the claim should have been raised
in his trial, direct appeal, or first § 2255 motion. Reyes-, 243 F.3d at 904. We
have consistently held that challenges to the validity of a sentencing
enhancement, which is the argument Abdul Ali raises, do not satisfy the
savings clause. See, e.g., In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011)
(holding that the petitioner’s claim that he was actually innocent of the career
offender enhancement was not a claim that he was actually innocent of the
offense of conviction); Padilla, 416 F.3d at 426-27 (holding that the petitioner’s
claim that his sentence exceeded the statutory maximum did not satisfy the
first prong of the Reyes-Requena test because he failed to show that he was
convicted of a nonexistent offense); Preston v. Ask-Carlson, 583 F. App’x 462,
463 (5th Cir. 2014) (“[C]laims relating to sentencing determinations do not fall
within the savings clause and are not cognizable under § 2241, even where the
petitioner asserts a ‘miscarriage of justice’ or actual innocence relating to the
alleged sentencing errors.”).



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    Case: 15-30282    Document: 00513543516     Page: 3   Date Filed: 06/10/2016


                                 No. 15-30282



      Relying on the Solicitor General’s concession in Persaud v. United States,
134 S. Ct. 1023 (2014), Abdul Ali argues that the savings clause should extend
to a previously foreclosed argument that the prisoner was actually innocent of
a mandatory life sentence. But the Department of Justice’s litigation cannot
override our precedent holding that sentencing issues do not invoke the
savings clause. And the Supreme Court did not issue a substantive ruling in
Persaud; it only granted the petition, vacated the judgment below, and then
remanded to the Fourth Circuit for reconsideration in light of the Solicitor
General’s position. 134 S. Ct. at 1023. Under our precedent, Abdul Ali has
failed to demonstrate that his claim fell within the savings clause of § 2255.
See Padilla, 416 F.3d at 426-27. Accordingly, the district court’s judgment
dismissing the § 2241 petition is AFFIRMED.




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