     Case: 13-11280      Document: 00512683188         Page: 1    Date Filed: 07/01/2014




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

                                                                               FILED
                                    No. 13-11280                            July 1, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
MIJKIA CARL WHITTAKER,

                                                 Petitioner-Appellant

v.

RODNEY W. CHANDLER, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-793


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Mijkia Carl Whittaker, federal prisoner # 30826-044, appeals the district
court’s denial of his petition for habeas corpus relief pursuant to 28 U.S.C.
§ 2241. Whittaker challenged, relying on Alleyne v. United States, 133 S. Ct.
2151 (2013), and Descamps v. United States, 133 S. Ct. 2276 (2013), the
enhancement of his sentence pursuant to the Armed Career Criminal Act. The
district court denied relief, concluding that such allegations should be


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11280    Document: 00512683188    Page: 2   Date Filed: 07/01/2014


                                No. 13-11280

presented in a 28 U.S.C. § 2255 motion and that Whittaker had not established
that he was entitled to proceed under the savings clause of § 2255(e), which
allows a federal prisoner to challenge his conviction under § 2241 if the
remedies provided under § 2255 are “inadequate or ineffective to test the
legality of his detention.” A petitioner seeking to establish that his § 2255
remedy was inadequate or ineffective must make a claim “(i) that is based on
a retroactively applicable Supreme Court decision which establishes that the
petitioner 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 the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena v.
United States, 243 F.3d 893, 900-01 (5th Cir. 2001). Both Alleyne, 133 S. Ct.
at 2163, and Descamps, 133 S. Ct. at 2282, address sentencing issues and have
no effect on whether the facts of Whittaker’s case would support his conviction
for the substantive offense. See Wesson v. U.S. Penitentiary Beaumont, TX,
305 F.3d 343, 348 (5th Cir. 2002). Accordingly, neither Alleyne nor Descamps
is a retroactively available Supreme Court decision indicating that Whittaker
was convicted of a nonexistent offense. See id. The judgment of the district
court is AFFIRMED.




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