     Case: 11-41062     Document: 00511859367         Page: 1     Date Filed: 05/17/2012




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

                                                                            FILED
                                                                           May 17, 2012

                                     No. 11-41062                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



THOMAS M. BRADDY, JR.,

                                                  Petitioner - Appellant
v.

UP FOX, Warden, United States Penitentiary Beaumont,

                                                  Respondent - Appellee



                   Appeals from the United States District Court
                         for the Eastern District of Texas
                         U.S. Dist. Ct. No. 1:10-cv-00401


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Thomas M. Braddy, Jr. (“Braddy”) appeals the district court’s dismissal of
his 28 U.S.C. §2241 application for want of jurisdiction. We AFFIRM in part and
VACATE and REMAND in part.
        Braddy was convicted of various charges, including a money laundering
charge, in the Eastern District of Virginia. His efforts to challenge his conviction
by way of a 28 U.S.C. §2255 application in that venue were unsuccessful. He


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41062

brought the instant §2241 application in the Eastern District of Texas, the venue
where he is being held.1
       Pertinent to this appeal, Braddy contends that the conviction and sentence
for money laundering (see 18 U.S.C. § 1956(a)) pursuant to which he is being
held is a “nonexistent offense” pursuant to United States v. Santos, 553 U.S. 507
(2008)2 and the Fourth Circuit’s analysis in United States v. Heaps, 39 F.3d 479,
486 (4th Cir. 1994). Ordinarily such a claim would be considered a challenge to
his conviction and sentence under §2255 rather than a challenge to the manner
of execution of his sentence under §2241, such that the district court in the
Eastern District of Texas would lack jurisdiction over it. The district court
concluded, and we agree, that it could have jurisdiction over this claim only if
Braddy met the savings clause test set forth in Reyes-Requena v. United States,
243 F.3d 893 (5th Cir. 2001), construing 28 U.S.C. §2255(e).
       Under this test, a claim may be asserted under §2241 if it is (1) based upon
a retroactively applicable Supreme Court decision; (2) that was foreclosed by
circuit law at the time when it should have been raised in the application’s trial,
appeal, or first §2255 motion; and (3) the retroactively applicable decision
establishes that the applicant may have been convicted of a nonexistent offense.
Reyes-Requena, 243 F.3d at 904.             The district court presumed the first two
elements of the test and analyzed the third, concluding that Braddy was not
convicted of a “nonexistent offense” under Santos and this circuit’s precedent of




       1
          Braddy does not brief any challenge to the district court’s conclusion that it would
lack jurisdiction over any §2255 motion challenging his conviction and sentence unless it meets
the savings clause test discussed more fully in the opinion. We affirm the district court’s
determination on that point.
       2
           Santos addressed the meaning of the term “proceeds” in the money laundering
statute. Thereafter, Congress amended the money laundering statute to provide a definition
of “proceeds.” See 18 U.S.C. § 1956(c)(9).

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                                     No. 11-41062

Garland v. Roy, 615 F.3d 391, 393 (5th Cir. 2010)(addressing application of
Santos to a claim filed under §2241 and dismissed by the district court).
      We conclude that it is unnecessary to reach the third prong of the Reyes-
Requena test because Braddy’s claim, on its face, fails the second prong. The
precedents upon which he relies – Santos and Heaps – had both been decided
prior to the filing of his first §2255 application.3 That he was unsuccessful on
that application is of no moment. Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir.
2000)(prior unsuccessful §2255 motion does not render §2255 relief inadequate).
The fact remains that his claim was not “unavailable” to him at that time (and,
indeed, was raised at that time). Thus, his challenge to his money laundering
conviction and sentence does not meet the savings clause test, and the district
court correctly dismissed it for want of jurisdiction.
      One claim remains, however. Braddy also challenged the Government’s
alleged breach of its plea agreement in allegedly placing him in close prison
confines with co-defendants. The district court did not address this issue which
may raise a matter cognizable under §2241. Given that we cannot determine
that the district court addressed this issue or the reasoning for dismissal as to
this issue, we conclude that remand is appropriate. Estate of Smith v. Tarrant
County Hospital Dist., 691 F.2d 207, 209 (5th Cir. 1982)(remanding where order
was not “sufficiently clear to permit meaningful appellate review”). Accordingly,
we VACATE the dismissal of Braddy’s claims to the extent only as to his claim
that his plea agreement was breached by housing him in close proximity to co-
defendants and REMAND to the district court for consideration in the first
instance. We express no opinion as to the merits of this challenge or decision as
to the propriety of raising it in this fashion. In all other respects, the district



      3
           Heaps was decided in 1994, and Santos was decided in June of 2008. Braddy filed
his first § 2255 application in December of 2008.

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court’s dismissal is AFFIRMED. Braddy’s motions for injunctive relief and for
appointment of counsel are DENIED.




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