     Case: 11-10720     Document: 00511852970         Page: 1     Date Filed: 05/11/2012




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

                                                                            FILED
                                                                           May 11, 2012
                                     No. 11-10720
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARY K. EDELMANN,

                                                  Petitioner-Appellant

v.

WARDEN JOE KEFFER,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-531


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Mary K. Edelmann, federal prisoner # 10316-064, appeals the dismissal
of a 28 U.S.C. § 2241 petition alleging that her convictions for mail fraud in
violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, and
money laundering in violation of 18 U.S.C. § 1957 are invalid in light of the
Supreme Court’s holding in Skilling v. United States, 130 S. Ct. 2896, 2907
(2010), that the honest services fraud statute, 18 U.S.C. § 1346, criminalizes only
conduct involving bribery and kickback schemes. The district court determined

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10720    Document: 00511852970      Page: 2    Date Filed: 05/11/2012

                                  No. 11-10720

that Edelmann’s claims failed to satisfy the “savings clause” of 28 U.S.C. § 2255.
The Government has moved for summary affirmance or, alternatively, an
extension of time to brief the merits. We deny both motions and AFFIRM.
      Under § 2241, we review factual findings for clear error and conclusions
of law de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). We may
affirm the district court’s judgment on any basis supported by the record. Berry
v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
      A § 2241 petition that attacks custody resulting from a federally imposed
sentence may be entertained under the “savings clause” of § 2255 if the
petitioner establishes that the remedy provided under § 2255 is “inadequate or
ineffective” to test the legality of his detention. Tolliver v. Dobre, 211 F.3d 876,
878 (5th Cir. 2000); see also Christopher, 342 F.3d at 381-82. The savings clause
is applicable only to a claim that (i) “is based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense” and that (ii) “was foreclosed by circuit law at
the time when the claim should have been raised in the petitioner’s trial, appeal,
or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th
Cir. 2001). The petitioner bears the “stringent” burden of affirmatively showing
that the § 2255 remedy is inadequate or ineffective and that she is entitled to
avail herself of the “limited exception” found in the savings clause. Christopher,
342 F.3d at 382.
      Edelmann has not made this showing. She has failed to show that the
district court erred in holding that Skilling is irrelevant because her offenses did
not involve honest services fraud, but were instead “classic schemes to steal
money.” She has also failed to show that the district court erred in denying her
request for production of documents. As the record refutes Edelmann’s claim
that she was convicted on a theory of honest services fraud, see United States v.
Edelmann, 458 F.3d 791, 797-800, 811-13 (8th Cir. 2006), the denial of her



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                                No. 11-10720

motion for production of documents was neither arbitrary nor clearly
unreasonable. United States v. MacCollom, 426 U.S. 317, 324-25 (1976).
     Skilling does not establish that Edelmann was convicted of nonexistent
offenses. Consequently, we need not decide whether it applies retroactively to
cases on collateral review or whether Edelmann’s purported claim was
previously foreclosed by circuit precedent because she cannot meet her burden
regardless. See Christopher, 342 F.3d at 382; Reyes-Requena, 243 F.3d at 904.
     AFFIRMED;       MOTIONS      FOR     SUMMARY      AFFIRMANCE         AND
EXTENSION OF TIME DENIED.




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