     Case: 12-30063     Document: 00511936356         Page: 1     Date Filed: 07/27/2012




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

                                                                            FILED
                                                                            July 27, 2012
                                     No. 12-30063
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONALD R. WILSON, SR.,

                                                  Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-1532


Before KING, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In September 1995, Donald R. Wilson, Sr., federal prisoner #08746-035,
was convicted by jury verdict for two counts of racketeering, one count of
engaging in a continuing criminal enterprise (CCE), one count of distribution of
cocaine, and two counts of distribution of cocaine base. Wilson filed a § 2241
petition in district court alleging that: (1) the evidence regarding the actual
substance involved in his offenses was insufficient in light of DePierre v. United
States, 131 S. Ct. 2225 (2011); and (2) the trial court’s failure to instruct the jury

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30063    Document: 00511936356      Page: 2    Date Filed: 07/27/2012

                                  No. 12-30063

to find upon which specific violations his CCE conviction was based was
erroneous in light of Richardson v. United States, 526 U.S. 813, 824 (1999). The
district court dismissed that petition because it did not qualify for the 28 U.S.C.
§ 2255 savings clause and was an unauthorized § 2255 motion.
      Wilson argues on appeal that his claims meet the savings clause provision
of § 2255 because the Supreme Court cases upon which he is relying are
retroactively applicable on collateral review and serve to void his convictions.
In an appeal from the denial of habeas corpus relief, the district court’s factual
findings are reviewed for clear error and issues of law are reviewed de novo.
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). In Reyes-Requena v.
United States, 243 F.3d 893, 900-04 (5th Cir. 2001), we held that in order to
bring a § 2241 petition under the § 2255 savings clause, the petitioner must set
forth a claim (1) that is based on a retroactively applicable Supreme Court
decision which establishes that the petitioner may have been convicted of a
nonexistent offense and (2) that 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.
      DePierre did not decriminalize Wilson’s criminal conduct and has not been
held to be retroactively applicable.      Although Richardson is retroactively
applicable, Wilson’s challenge to his CCE conviction under Richardson does not
meet the savings clause test because application of Richardson does not render
the crime of conviction a nonexistent offense. See Jeffers, 253 F.3d at 830.
      Wilson has not demonstrated that the district court erred in dismissing his
§ 2241 petition. Accordingly, the judgment of the district court is AFFIRMED.




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