     Case: 12-30248     Document: 00511951143         Page: 1     Date Filed: 08/09/2012




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

                                                                            FILED
                                                                           August 9, 2012
                                     No. 12-30248
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LAFAYETTE HOWARD,

                                                  Petitioner-Appellant

v.

JOSEPH P. YOUNG,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:11-CV-1415


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Lafayette Howard, federal prisoner # 16886-076, appeals the dismissal of
his 28 U.S.C. § 2241 petition challenging his convictions for armed bank robbery,
assault during a bank robbery, and carrying a firearm during and in relation to
a crime of violence, for which he received an aggregate sentence of 28 years in
prison. He contends that his convictions for armed bank robbery and the firearm
carrying violated the Double Jeopardy Clause because they were based upon the
same weapon. Howard also asserts that his trial attorney rendered ineffective

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30248    Document: 00511951143      Page: 2   Date Filed: 08/09/2012

                                  No. 12-30248

assistance by advising him to plead guilty to the named offenses despite the
purported double jeopardy violation and despite the lack of evidence supporting
his convictions.
      Typically, in reviewing the denial of a § 2241 petition, we review the
district court’s legal determinations de novo and its factual findings for clear
error. See Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005). However,
because Howard failed to object to the magistrate judge’s report, we review for
plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996) (en banc). To establish plain error, Howard must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. Id.
      As a general rule, a federal prisoner who seeks to collaterally challenge the
legality of his conviction or sentence must file a 28 U.S.C. § 2255 motion.
Padilla, 416 F.3d at 426-27. 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). Howard has not made such a showing, as he has not established that
his claim is based on a retroactively applicable Supreme Court decision
establishing that he was convicted of a nonexistent offense. See Reyes-Requena
v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
      Howard also asserts that the district court failed to liberally construe his
pro se pleadings, as required by Haines v. Kerner, 404 U.S. 519, 520 (1972),
because it did not conduct a “meticulous review” of the record to determine
whether relief was warranted on the merits of Howard’s allegations. The district
court determined that it lacked jurisdiction over Howard’s § 2241 petition
because the pleading did not challenge the execution of Howard’s sentence and
did not satisfy the § 2255(e) savings clause. The district court could not consider

                                        2
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                                 No. 12-30248

Howard’s § 2241 petition as his initial § 2255 motion because it lacked
jurisdiction over such a pleading. See § 2255(a). To the extent that Howard may
be asserting that the district court could not recharacterize his § 2241 petition
as a § 2255 motion, he is incorrect. See Tolliver v. Dobre, 211 F.3d 876, 877-78
(5th Cir. 2000). Because Howard has not shown a clear or obvious error, the
judgment of the district court is AFFIRMED. See Puckett, 556 U.S. at 135.




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