     Case: 15-10243      Document: 00513431356         Page: 1    Date Filed: 03/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10243
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 21, 2016
NICHOLAS QUANTEL ROBERSON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

MYRON L. BATTS, Warden, Federal Correctional Institution Big Spring,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CV-175


Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
       Nicholas Quantel Roberson, federal prisoner # 56146-180, appeals the
dismissal for lack of jurisdiction of his 28 U.S.C. § 2241 petition challenging
his conviction and sentence for possession with intent to distribute cocaine
base. The district court construed the claims raised as seeking 28 U.S.C.
§ 2255 relief and thus construed the petition as an unauthorized successive
§ 2255 motion over which it lacked jurisdiction. Reviewing the district court’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10243   Document: 00513431356    Page: 2   Date Filed: 03/21/2016


                                 No. 15-10243

legal determinations de novo and its factual findings for clear error, we affirm.
See Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005).
       Jurisdiction over Roberson’s habeas petition was proper in any division
of the Northern District of Texas, the district of Roberson’s confinement. See
28 U.S.C. § 124(a)(2), (3); Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001).
Roberson argues that he warrants application of the § 2255 savings clause
because the Fair Sentencing Act of 2010 renders him actually innocent of his
crime of conviction. As Roberson challenges the legality of his sentence, rather
than the manner in which it is being executed, the district court did not err in
concluding that his claims arise under § 2255. See Padilla, 416 F.3d at 425-
26.    Similarly, his claim that he is “actually innocent” of the sentence
enhancement attacks the manner in which his sentence was initially
determined. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). Therefore,
he also had to meet the requirements of the savings clause of § 2255 to raise
this claim in a § 2241 petition. Id. However, because he has not shown that
his claims “[are] based on a retroactively applicable Supreme Court decision
which establishes that [he] may have been convicted of a nonexistent offense,”
Roberson has not shown that he is entitled to proceed under the savings clause
of § 2255. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001). Accordingly, the judgment of the district court is AFFIRMED.




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