     Case: 15-30734      Document: 00513515212         Page: 1    Date Filed: 05/20/2016




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

                                    No. 15-30734                                 FILED
                                  Summary Calendar                           May 20, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
WILLIAM BERNARD FREEMAN,

                                                 Petitioner-Appellant

v.

T. G. WERLICH, Warden, Federal Correctional Institution Pollock,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:15-CV-1669


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
       William Bernard Freeman, federal prisoner # 25555-064, was convicted
by a jury in the Western District of Oklahoma of one count of bank robbery,
which was charged under 18 U.S.C. § 2113(a) (the robbery statute) and
18 U.S.C. § 2 (the aiding and abetting statute). He filed a petition under
28 U.S.C. § 2241 in the Western District of Louisiana, where he currently is
incarcerated. In his § 2241 petition, Freeman challenged the legality of his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-30734   Document: 00513515212      Page: 2   Date Filed: 05/20/2016


                                  No. 15-30734

conviction in light of the Supreme Court’s decision in Rosemond v. United
States, 134 S. Ct. 1240 (2014). The district court construed the petition as a
28 U.S.C. § 2255 motion and dismissed it for want of jurisdiction. Freeman
appeals the dismissal.
       A prisoner may avoid the jurisdictional stricture of § 2255(a) if he
demonstrates that no adequate or effective relief is attainable by motion under
§ 2255 and that relief under § 2241 is therefore proper. Jeffers v. Chandler,
253 F.3d 827, 830 (5th Cir. 2001); see § 2255(e). Unlike a § 2255 motion, a
§ 2241 petition must be filed “in the district of the prisoner’s incarceration.”
Reyes-Requena, 243 F.3d at 895 n.3. However, “§ 2241 is not a mere substitute
for § 2255[,] and . . . the inadequacy or inefficacy requirement is stringent.” Id.
at 901; see Christopher v. Miles, 342 F.3d 378, 382 (5th Cir. 2003) (noting that
§ 2255(e) provides a narrow exception to the general rule and the applicant’s
burden of demonstrating § 2255’s inadequacy is heavy).
       The savings clause of § 2255 provides that
       [a]n application for a writ of habeas corpus in behalf of a prisoner
       who is authorized to apply for relief by motion pursuant to this
       section, shall not be entertained if it appears that the applicant
       has failed to apply for relief, by motion, to the court which
       sentenced him, or that such court has denied him relief, unless it
       also appears that the remedy by motion is inadequate or ineffective
       to test the legality of his detention.
§ 2255(e). A petitioner may file a § 2241 petition in accordance with § 2255(e)
if:
       (1) the petition raises a claim that is based on a retroactively
       applicable Supreme Court decision; (2) the claim was previously
       foreclosed by circuit law at the time when it should have been
       raised in petitioner’s trial, appeal or first § 2255 motion; and (3)
       that retroactively applicable decision establishes that the
       petitioner may have been convicted of a nonexistent offense.




                                        2
    Case: 15-30734    Document: 00513515212     Page: 3   Date Filed: 05/20/2016


                                 No. 15-30734

Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010) (internal quotation marks,
citation, and brackets omitted). “[T]he core idea is that the petitioner may
have been imprisoned for conduct that was not prohibited by law.” Reyes-
Requena, 243 F.3d at 903.
      Here, we need not decide the issues of retroactivity and unavailability
because there is no possibility that the jury convicted Freeman of a nonexistent
offense. See Christopher, 342 F.3d at 382-83 (assuming that the petitioner
could satisfy the retroactivity and unavailability prongs and denying relief on
the third prong because the petitioner failed to demonstrate actual innocence).
At trial, the evidence established that Freeman planned the robbery, recruited
accomplices, coordinated the actions of his accomplices, and served as the
getaway driver. See Rosemond, 134 S. Ct. at 1249 (“So for purposes of aiding
and abetting law, a person who actively participates in a criminal scheme
knowing its extent and character intends that scheme’s commission.”).
      Because Freeman cannot establish that he was convicted of a
nonexistent offense, he is not entitled to relief under § 2241, and the district
court correctly characterized Freeman’s purported habeas petition as an
unauthorized successive motion to vacate under § 2255.         Pack v. Yusuff,
218 F.3d 448, 45 (5th Cir. 2000).
      AFFIRMED.




                                       3
