     Case: 16-40030      Document: 00513895041         Page: 1    Date Filed: 03/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-40030                                 FILED
                                  Summary Calendar                           March 2, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
VIRGIL RIVERS-BEY,

                                                 Petitioner-Appellant

v.

FRANCISCO LARA, WARDEN,
FEDERAL CORRECTIONAL COMPLEX-BEAUMONT, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:15-CV-270


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Respondent-Appellee Virgil Rivers-Bey, federal prisoner # 81378-158,
appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition,
contending that (1) his conviction for unlawful use of a firearm is based on an
improper amendment of the indictment; (2) he is actually innocent of the
unlawful use of a firearm because there was insufficient evidence to show that



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40030     Document: 00513895041      Page: 2   Date Filed: 03/02/2017


                                  No. 16-40030

he actively employed the firearm; (3) his trial and appellate counsel were
ineffective for failing to raise these contentions and for failing to urge that the
district court should have dismissed his charge of unlawful use of a firearm
when it dismissed his conviction for being a felon in possession of a firearm; (4)
his conviction has resulted in a miscarriage of justice; and (5) he has been
convicted of a nonexistent offense.
      Under § 2241, we review findings of fact for clear error and conclusions
of law de novo. Garland v. Roy, 615 F.3d 391, 396 (5th Cir. 2010); Christopher
v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). Because Rivers-Bey’s § 2241 claims
attacked the validity of his conviction, the district court did not err in
determining that the claims would be properly brought in a 28 U.S.C. § 2255
motion. See Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005); Pack
v. Yusuff, 218 F.3d 448, 451-52 (5th Cir. 2000). The district court did not err
in holding that Rivers-Bey failed to meet his burden of showing that the § 2255
remedy is inadequate or ineffective by identifying a retroactive decision that
changed circuit law. See § 2255(e); see Reyes-Requena v. United States, 243
F.3d 893, 901 (5th Cir. 2001) (stating that the savings clause of § 2255 allows
a federal prisoner to attack the legality of his conviction or sentence in a § 2241
petition if he can show that the remedies provided under § 2255 are
“inadequate or ineffective to test the legality of his detention”). The district
court’s judgment is AFFIRMED.




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