     Case: 13-10680      Document: 00512707150         Page: 1    Date Filed: 07/22/2014




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

                                                                                 FILED
                                    No. 13-10680                             July 22, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
GARY REEDER,

                                                 Petitioner–Appellant,

v.

KAREN EDENFIELD,

                                                 Respondent–Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:11-CV-13


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Gary Reeder, federal prisoner # 31983-177, appeals from the order
denying his petition for habeas corpus relief pursuant to 28 U.S.C. § 2241.
Reeder challenges his conviction of money laundering conspiracy. He contends
that he was innocent of money laundering conspiracy pursuant to United
States v. Santos, 553 U.S. 507 (2008). He alleges that Santos was unavailable
to him until the bound volume containing it arrived at the prison library in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-10680

spring 2009, and that, therefore, he could not have amended his motion for
relief under 28 U.S.C. § 2255, which was pending when Santos was decided, to
include a Santos claim. The Government moves for dismissal of Reeder’s
appeal as frivolous and Reeder moves for appointment of counsel.
      In reviewing the denial of habeas relief under § 2241, this court reviews
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). 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 (5th Cir. 2000). Section 2241, on the other hand, is used to
challenge “the manner in which a sentence is executed.” Id. 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; see also § 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 make a showing 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 petitioner bears the burden of



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                                 No. 13-10680

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).
      Reeder has not shown that his Santos claim was foreclosed when he
should have raised it during his § 2255 proceeding. In the district court,
though not in this court, Reeder alleged that the booklet containing Santos
went missing after it arrived in the prison law library because it was taken by
another prisoner and hidden in a locker. If this was so, then Santos was not
made unavailable due to any deficiency in the prison law library that can be
attributed to prison officials. Cf. Egerton v. Cockrell, 334 F.3d 433, 438 (5th
Cir. 2003) (holding that the absence of the Antiterrorism and Effective Death
Penalty Act from the prison law library constituted a state-created impediment
for purposes of the one-year limitations period of 28 U.S.C. § 2244(d)); Scott v.
Johnson, 227 F.3d 260, 263 n.3 (5th Cir. 2000) (“[A]n inadequate law library
does not constitute a ‘rare and exceptional’ circumstance warranting equitable
tolling.”). Moreover, we discussed Santos sufficiently in December 2008 to
alert Reeder to the holding of that case. See United States v. Achobe, 560 F.3d
259, 269-71 (5th Cir. 2008); United States v. Brown, 553 F.3d 768, 782-84 (5th
Cir. 2008). Also, the issue in Santos had been addressed by other circuits, see
Santos v. United States, 461 F.3d 886, 889-94 (7th Cir. 2006); United States v.
Grasso, 381 F.3d 160, 166-69 (3d Cir. 2004), vacated, 544 U.S. 945 (2005), and
the Supreme Court granted certiorari in Santos in 2007, United States v.
Santos, 550 U.S. 902 (2007). Reeder has not shown that he needed a copy of
Santos to be alerted to the issue in that case and that the Supreme Court had
decided it. See Wesson, 305 F.3d at 347.
      AFFIRMED.       MOTION TO DISMISS DENIED.                 MOTION FOR
APPOINTMENT OF COUNSEL DENIED.



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