     Case: 11-10251     Document: 00511720224         Page: 1     Date Filed: 01/10/2012




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

                                                                            FILED
                                                                         January 10, 2012
                                     No. 11-10251
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARTHA BELL,

                                                  Petitioner-Appellant

v.

JOE KEFFER, Warden, FMC Carswell,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-928


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Martha Bell, former federal prisoner # 08236-068, appeals the dismissal
of her 28 U.S.C. § 2241 petition alleging that her conviction for health care
fraud, in violation of 18 U.S.C. §§ 1347 and 2, and her convictions for having
made false statements relating to health care matters, in violation of 18 U.S.C.
§ 1035(a)(2), were invalid in light of Skilling v. United States, 130 S. Ct. 2896,
2907 (2010). The district court dismissed the petition on grounds that Bell failed
to satisfy 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-10251

      Under § 2241, we review factual findings for clear error and conclusions
of law de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). This
court may affirm the district court’s judgment on any basis supported by the
record. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
      A § 2241 petition that attacks custody resulting from a federally imposed
sentence may be entertained under the “savings clause” of § 2255 if the
petitioner establishes that the remedy provided under § 2255 is “inadequate or
ineffective” to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876,
878 (5th Cir. 2000); see also Christopher v. Miles, 342 F.3d 378, 381-82 (5th Cir.
2003). The savings clause is applicable only to a claim that (i) “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and that (ii) “was
foreclosed by circuit law at the time when the claim should have been raised in
the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). The petitioner bears the “stringent”
burden of affirmatively showing that the § 2255 remedy is inadequate or
ineffective and that she is entitled to avail herself of the “limited exception”
found in the savings clause. Christopher, 342 F.3d at 382.
      Bell has not made such a showing. She attempts to establish that Skilling
renders her actually innocent of her conviction for health care fraud because it
was predicated on a scheme to deprive Medicare and Medicaid of the right to
honest services, as compared to money. However, the trial court did not find, as
Bell claims, that the Government failed to prove any economic loss. To the
contrary, the trial court explicitly found that “there [was] a monetary loss in this
case.” See United States v. Bell, 282 F. App’x 184, 187 (3rd Cir. 2008) (rejecting
Bell’s sufficiency of the evidence challenge and observing that records were
falsified to maintain the “flow of government money”). Additionally, even if the
reference to honest services in the jury instructions is constitutional error after
Skilling, the indictment contained sufficient charges for which Bell could have

                                         2
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                                  No. 11-10251

been convicted of “obtain[ing], by means of false or fraudulent pretenses,
representations, or promises, . . . money,” as she was charged with health care
fraud in executing and attempting to execute both a scheme or artifice to defraud
Medicare and Medicaid and a scheme or artifice to obtain money under the
control of Medicare and Medicaid. See Christopher, 342 F.3d at 383; § 1347; see
also United States v. Skilling, 638 F.3d 480, 481 (5th Cir. 2011) (on remand)
(“[A]n alternative-theory error . . . is subject to harmless-error analysis so long
as the error at issue does not categorically vitiate all the jury’s findings.”)
(internal quotation marks, brackets, and citation omitted), pet. for cert. filed
(Nov. 28, 2011) (No. 11-674). Skilling does not establish that Bell’s convictions
are for nonexistent offenses. Consequently, we do need reach the questions
whether Skilling is retroactively applicable to cases on collateral review or
whether Bell’s purported claim was previously foreclosed by circuit precedent
because Bell cannot meet her burden regardless. See Christopher, 342 F.3d at
382; Reyes-Requena, 243 F.3d at 904.
      AFFIRMED.




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