     Case: 15-40049       Document: 00513253655         Page: 1     Date Filed: 10/30/2015




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

                                     No. 15-40049                                    FILED
                                   Summary Calendar                           October 30, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
KENDRICKS KILCREASE,

                                                  Petitioner - Appellant

v.

CHARLES A. DANIELS, Warden,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CV-415


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Kendricks Kilcrease, federal prisoner # 15873-026, who is proceeding pro
se, pleaded guilty, in district court in Illinois, to possessing crack cocaine with
intent to distribute. His original sentence in 2010 of life imprisonment was
reduced in 2013 to 230 months.
       Kilcrease contests the dismissal of his 28 U.S.C. § 2241 petition. Because
pro se briefs are afforded liberal construction, Yohey v. Collins, 985 F.2d 222,


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 15-40049     Document: 00513253655      Page: 2   Date Filed: 10/30/2015


                                  No. 15-40049

225 (5th Cir. 1993), we understand his claim to be: based on Alleyne v. United
States, his statutory minimum sentence was unconstitutionally increased
based on facts not admitted or proved before a jury beyond a reasonable doubt;
and, therefore, he is entitled to a sentence reduction. 133 S. Ct. 2151 (2013).
      The dismissal of a § 2241 petition is reviewed de novo. E.g., Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Ordinarily, a collateral attack on
claimed errors at trial or sentencing is through a 28 U.S.C. § 2255 motion. Id.
In that regard, a federal prisoner may challenge the legality of his conviction
or sentence in a § 2241 petition only when the remedy in § 2255 “is inadequate
or ineffective to test the legality of his detention”. 28 U.S.C. § 2255(e). To meet
the requirements of § 2255(e), Kilcrease must demonstrate his claim was “(i)
. . . based on a retroactively applicable Supreme Court decision which
establishes that [he] may have been convicted of a nonexistent offense and (ii)
that was foreclosed by circuit law at the time when the claim should have been
raised in [his] trial, appeal, or first § 2255 motion”. Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001).
      Alleyne is not retroactively applicable to cases on collateral review.
United States v. Olvera, 775 F.3d 726, 730 (5th Cir. 2015). Kilcrease maintains
Persaud v. United States announced Alleyne and its progeny applied
retroactively to such cases.    134 S. Ct. 1023 (2014).      The Persaud Court,
however, remanded the matter “for further consideration in light of the
position asserted by the Solicitor General in his brief for the United States”.
Id. Accordingly, Persaud is not a substantive decision.
      AFFIRMED.




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