     Case: 18-10489      Document: 00514807834         Page: 1    Date Filed: 01/24/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                    No. 18-10489
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                    January 24, 2019
                                                                       Lyle W. Cayce
VINCENT PISCIOTTA,                                                          Clerk


                                                 Petitioner-Appellant

v.

D. J. HARMON, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-2797


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       A jury in the Western District of Missouri convicted Vincent Pisciotta,
federal prisoner # 23174-045, of arson, conspiracy to commit arson, and use of
fire to commit a federal felony offense, and he was sentenced to an aggregate
term of imprisonment of 240 months. He now appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition, which he filed in the Northern
District of Texas, where he is currently incarcerated.               Pisciotta generally


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10489

asserts that the district court erroneously concluded that he failed to meet the
requirements of the savings clause of 28 U.S.C. § 2255(e), which would allow
him to proceed under § 2241. Liberally construed, his petition challenged the
validity of his sentence, asserted factual innocence, and argued that his
convictions were constitutionally infirm because the jury instructions were
defective, he was subjected to double jeopardy, and counsel was ineffective for
failing to raise these claims and litigate other errors at trial and sentencing.
Because the district court dismissed the § 2241 petition on the pleadings, this
court’s review is de novo. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
      A prisoner may use Section 2241 to challenge his sentence only if it
“appears that the remedy [under Section 2255] is inadequate or ineffective to
test the legality of his detention.” 28 U.S.C. § 2255(e). A § 2241 petition is not
a substitute for a § 2255 motion, and Pisciotta must establish the inadequacy
or ineffectiveness of a § 2255 motion by meeting the savings clause of § 2255.
See § 2255(e); Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Under that clause,
Pisciotta must show that his petition sets forth a claim “based on a
retroactively applicable Supreme Court decision which establishes that [he]
may have been convicted of a nonexistent offense” and that the claim “was
foreclosed by circuit law at the time when [it] should have been raised in [his]
trial, appeal, or first § 2255 motion.” Reyes-Requena, 243 F.3d at 904.
      Pisciotta presented no credible evidence of actual innocence, and his
sentencing claims are not cognizable in a § 2241 proceeding. See Padilla v.
United States, 416 F.3d 424, 426-27 (5th Cir. 2005). Pisciotta’s reliance on
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Mathis v. United States, 136
S. Ct. 2243 (2016), to support his remaining claims is misplaced. Dimaya did
not address whether its holding might apply retroactively on collateral review



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                                 No. 18-10489

of a criminal conviction or establish that Pisciotta was imprisoned for
noncriminal conduct. See Dimaya, 138 S. Ct. at 1211-12. Mathis neither sets
forth a new rule of constitutional law nor applies retroactively to cases on
collateral review. See Mathis, 136 S. Ct. at 2257; In re Lott, 838 F.3d 522, 523
(5th Cir. 2016).     Moreover, Mathis implicates the validity of a sentence
enhancement and does not establish that Pisciotta was convicted of a
nonexistent offense. See Padilla, 416 F.3d at 425-27. Therefore, Pisciotta’s
Dimaya and Mathis-based claims do not satisfy the test for the savings clause
of § 2255(e).
      Accordingly, the district court did not err in determining that Pisciotta
failed to satisfy the requirements of the savings clause of § 2255(e) and
dismissing his § 2241 petition for lack of jurisdiction. See Reyes-Requena, 243
F.3d at 904. The judgment of the district court is AFFIRMED.




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