     Case: 15-40359      Document: 00513555090         Page: 1    Date Filed: 06/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40359
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 20, 2016
GENE EARL PETTAWAY,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

N. VASQUEZ, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CV-538


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Gene Earl Pettaway, federal prisoner # 95088-080, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition. In his petition,
Pettaway challenged the sentence imposed following his conviction of
possession with intent to distribute cocaine base. Robinson contends that he
should be permitted to proceed under the savings clause of 28 U.S.C. § 2255.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40359    Document: 00513555090     Page: 2   Date Filed: 06/20/2016


                                 No. 15-40359

      Section 2255 provides “the primary means of collaterally attacking a
federal sentence.” Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section
2241, on the other hand, is generally used to challenge “the manner in which
a sentence is executed.” Id. However, under § 2555’s savings clause, a § 2241
petition that challenges a federal sentence may be entertained if the remedy
provided under § 2255 is “inadequate or ineffective to test the legality of the
petitioner’s detention.” § 2255(e); accord Robinson v. United States, 812 F.3d
476, 476-77 (5th Cir. 2016).
      Pettaway bears the burden of showing that § 2555’s remedy is
inadequate or ineffective and thus that his claims fit within the savings clause.
Robinson, 812 F.3d at 477. To do so, Pettaway must show, among other things,
that his claims are “based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of a nonexistent
offense.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
      The district court found that Pettaway’s claims did not fit within the
savings clause because they challenged only the validity of his sentence.
Pettaway invokes Persaud v. United States, 134 S. Ct. 1023 (2014) (mem.),
contending that it announced a change in the law and sanctioned the use of
§ 2241 petitions to challenge an illegal sentence. However, “Persaud was not
a substantive decision,” and it therefore does not support Pettaway’s
contention that his sentencing challenges are adequately brought in a § 2241
petition. Robinson v. United States, 812 F.3d 476, 477 (5th Cir. 2016).
      Because Pettaway does not attack his conviction and his claims
challenge only the validity of his sentence, Pettaway’s § 2241 petition does not
fall within the savings clause of § 2255(e) and the district court properly
dismissed it.   Accordingly, the district court’s judgment is AFFIRMED.
Pettaway’s motion to appoint counsel is DENIED.



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