     Case: 17-60376      Document: 00514450770        Page: 1     Date Filed: 04/30/2018




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

                                                                               FILED
                                   No. 17-60376                            April 30, 2018
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



QUITMAN CARTER,

                                                Petitioner−Appellant,

versus


B.E. BLACKMON, Warden, Federal Correctional Institution Yazoo City Low,

                                                Respondent−Appellee.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                 No. 3:16-CV-565




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Quitman Carter, federal prisoner #31889-044, appeals the dismissal of


      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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. 17-60376

his 28 U.S.C. § 2241 habeas corpus petition, which challenged his 15-year
statutorily-enhanced sentence for possession of a firearm by a felon in violation
of 18 U.S.C. § 922(g)(1). Carter was sentenced as an armed career criminal
based on a determination that he had at least three violent-felony convictions,
which subjected him to an enhanced sentence under the Armed Career Crim-
inal Act (“ACCA”), 18 U.S.C. § 924(e). Carter contended that he was actually
innocent of the ACCA enhancement and no longer had three violent-felony con-
victions under the new and retroactive rules of Johnson v. United States,
135 S. Ct. 2551 (2015), Welch v. United States, 136 S. Ct. 1257 (2016), and
Mathis v. United States, 136 S. Ct. 2243 (2016).

      The district court dismissed the petition because Carter still had three
violent-felony convictions. The court did not address the government’s conten-
tion that it lacked jurisdiction to consider the petition because Carter was chal-
lenging his sentence only and was not contending that he was convicted of a
non-existent offense.

      Carter’s claims do not fit within the savings clause of 28 U.S.C. § 2255(e),
because they challenge the validity of his enhanced sentence, not his convic-
tion. The savings clause applies only to § 2241 claims that, among other
things, are based on a retroactively applicable Supreme Court decision that
establishes that the petitioner “may have been convicted of a nonexistent
offense.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001);
see Padilla v. United States, 416 F.3d 424, 426−27 (5th Cir. 2005). Carter’s
theory that Sharbutt v. Vasquez, 136 S. Ct. 2538 (2016) (mem.), allows him to
proceed under the savings clause is unavailing, because it was not a substan-
tive decision. See Robinson v. United States, 812 F.3d 476, 477 (5th Cir. 2016).

      Although the district court did not address its jurisdiction under the sav-
ings clause, we are required to examine it. See Lee v. Wetzel, 244 F.3d 370, 373


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                                  No. 17-60376

(5th Cir. 2001). Carter has failed to show that he was actually innocent of the
crime of conviction, and he is not entitled to use the savings clause of § 2255 to
challenge his sentence by petitioning under § 2241. See Padilla, 416 F.3d
at 426−27. Because Carter failed to meet the savings-clause standard and was
convicted and sentenced in the Eastern District of Missouri, the district court
for the Southern District of Mississippi lacked jurisdiction to consider his John-
son and Mathis claims . See Pack v. Yusuff, 218 F.3d 448, 451−54 (5th Cir.
2000).

      Accordingly, we VACATE the judgment and REMAND with instruction
to DISMISS the § 2241 petition for lack of jurisdiction. See Christopher v.
Miles, 342 F.3d 378, 385 (5th Cir. 2003).




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