     Case: 11-11009     Document: 00511935060         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                            July 26, 2012
                                     No. 11-11009
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARY K. EDELMANN,

                                                  Petitioner-Appellant

v.

JOE KEFFER, Warden, Federal Medical Center Carswell,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-561


Before SMITH, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Mary K. Edelmann, federal prisoner # 10316-064, appeals the dismissal
of a 28 U.S.C. § 2241 petition alleging that her conviction for wire fraud in
violation of 18 U.S.C. § 1343 is invalid in light of the Supreme Court’s holding
in Skilling v. United States, 130 S. Ct. 2896, 2907 (2010), that the honest
services fraud statute, 18 U.S.C. § 1346, criminalizes only conduct involving
bribery and kickback schemes. The district court determined that Edelmann’s
claims failed to satisfy the “savings clause” of 28 U.S.C. § 2255.                       The

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11009    Document: 00511935060      Page: 2    Date Filed: 07/26/2012

                                  No. 11-11009

Government has moved for summary affirmance, a dismissal of the appeal as
frivolous, or alternatively, an extension of time to brief the merits. We deny the
Government’s motions and AFFIRM.
      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). We 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, 342 F.3d at 381-82. 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.
      Edelmann has not made this showing. She has failed to show that the
district court erred in holding that Skilling is irrelevant because she was not
charged with or convicted of honest services fraud. Consequently, we need not
decide whether Skilling applies retroactively to cases on collateral review or
whether Edelmann’s purported claim was previously foreclosed by circuit
precedent because she cannot meet her burden regardless. See Christopher, 342
F.3d at 382; Reyes-Requena, 243 F.3d at 904.
      AFFIRMED; MOTIONS DENIED.

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