     Case: 11-50903     Document: 00511861512         Page: 1     Date Filed: 05/21/2012




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

                                                                            FILED
                                                                           May 21, 2012
                                     No. 11-50903
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAMES RAYMOND NIBLOCK,

                                                  Petitioner-Appellant

v.

WARDEN CLAUDE MAYE, Bastrop Federal Correctional Institution Bastrop,
Texas,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CV-539


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        James Raymond Niblock, federal prisoner # 45816-083, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. Niblock
argues that his challenge to a conflict between the oral and written judgments
was properly brought in a § 2241 petition because the error occurred after the
sentencing proceeding. He further reasserts the substance of the claim, alleging
that the conflict between the judgments constitutes error. Niblock also contends


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50903     Document: 00511861512    Page: 2   Date Filed: 05/21/2012

                                  No. 11-50903

that he is actually innocent of the offense of conviction because the Government
withheld favorable evidence. Because he is alleging a claim of actual innocence,
Niblock asserts that the savings clause of § 2255 is applicable. Additionally,
Niblock contends that his trial counsel rendered ineffective assistance by failing
to communicate to him a favorable plea offer, and only his recent discovery of
this fact allowed him to raise this claim in a § 2241 petition.
      Under § 2241, we review findings of fact for clear error and conclusions of
law de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). Because
Niblock’s § 2241 claims attacked the validity of his conviction and sentence, the
district court did not err in determining that the claims would be properly
brought in a § 2255 motion. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000).
      A petitioner can attack the validity of his conviction and sentence in a
§ 2241 petition only if he can meet the requirements of the savings clause of
§ 2255(e). Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). The petitioner
shoulders the burden of affirmatively showing that the remedy under § 2255
would be “inadequate or ineffective to test the legality of his detention.”
§ 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
      Niblock has not shown that his claim “is based on a retroactively
applicable Supreme Court decision which establishes that [he] may have been
convicted of a nonexistent offense.” See Reyes-Requena, 243 F.3d at 904. Thus,
he has not shown that he is entitled to proceed under the savings clause of
§ 2255. See § 2255(e); Reyes-Requena, 243 F.3d at 904. To the extent that
Niblock argues that the dismissal of his § 2241 petition impermissibly suspends
the writ of habeas corpus, we have “held that the savings clause under § 2255
does not violate the Suspension Clause.” Wesson v. United States Penitentiary
Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002) (relying on Reyes-Requena, 243
F.3d at 901 n.19)).
      Accordingly, the judgment of the district court is AFFIRMED.

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