     Case: 17-10739      Document: 00514568092         Page: 1    Date Filed: 07/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 17-10739                               FILED
                                  Summary Calendar                         July 24, 2018
                                                                          Lyle W. Cayce
RICHARD CLARK,
                                                                               Clerk


                                                 Petitioner-Appellant

v.

D.J. HARMON, Warden of FCI Seagoville,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:17-CV-670


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Richard Clark, federal prisoner # 10560-062, appeals the denial of his
28 U.S.C. § 2241 petition wherein he attacked his prior conviction in the
Northern District of Oklahoma for conspiracy to commit wire fraud, securities
fraud, and money laundering; seven counts of wire fraud; five counts of
securities fraud; and money laundering. The district court for the Northern
District of Texas, where Clark is incarcerated, found that Clark failed to meet


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10739
the requirements of the savings clause of 28 U.S.C. § 2255(e). We review the
denial of Clark’s petition de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th
Cir. 2003).
      A prisoner may use § 2241 to challenge his conviction only if the remedy
under § 2255 is inadequate or ineffective to contest the legality of his detention.
§ 2255(e). A § 2241 petition is not a substitute for a § 2255 motion, and Clark
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, Clark must show that his petition raises a claim
based on a retroactively applicable Supreme Court decision that supports that
he may have been convicted of a nonexistent offense and that the claim was
foreclosed when it should have been raised in his trial, direct appeal, or original
§ 2255 motion. Reyes-Requena, 243 F.3d at 904.
      Clark admits that he does not rely on a retroactively applicable Supreme
Court decision implicating his criminal conviction. He nonetheless argues that
he may proceed under § 2241 because he exhausted the opportunities for relief
under § 2255, and he has not obtained a merits review of all of his claims. He
suggests that his ability to pursue § 2255 relief has been suspended.
      The inability of Clark to obtain relief or the alleged failure of the courts
to consider the merits of a claim does not, by itself, demonstrate the inadequacy
or ineffectiveness of § 2255. See Pack v. Yusuff, 218 F.3d 448, 453-54 (5th Cir.
2000); Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). Section 2241 is not
a means for a prisoner to contest a prior disposition of a federal habeas petition,
see Kinder v. Purdy, 222 F.3d 209, 214 (5th Cir. 2000), and an alleged defect in
a previous § 2255 proceeding does not implicate the savings clause, see Reyes-
Requena, 243 F.3d at 903-04. Contrary to his assertion, Clark’s opportunity to
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                                  No. 17-10739
seek federal habeas relief was not suspended. See Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 346-47 (5th Cir. 2002); Kinder, 222 F.3d at 213.
      Clark also attacks the requirements of the savings clause established in
Reyes-Requena and suggests that its holding should be overturned. However,
he has not identified a contrary en banc decision by this court or an intervening
Supreme Court decision that overrules Reyes-Requena or establishes that its
holding no longer is the governing precedent in this circuit. Thus, we remain
bound by Reyes-Requena. See United States v. Traxler, 764 F.3d 486, 489 (5th
Cir. 2014).
      Finally, Clark contends that the denial of his § 2241 petition is invalid
because the district court adopted a report issued by a magistrate judge (MJ).
He alleges that the appointment of MJs is unconstitutional because no statute
governs the establishment of a specific number of MJs’ offices.
      Consistent with the Appointments Clause of the Constitution, Article II,
Section 2, Clause 2, Congress, by law, provided the judiciary control over the
appointment and administration of MJs. Specifically, the Federal Magistrates
Act, 28 U.S.C. § 631, et seq., states that the judges of each federal district court
shall appoint MJs in such numbers and to serve at such locations as decided
by the Judicial Conference of the United States and identifies the process and
standards by which the number, locations, and salaries of MJs are determined.
See 28 U.S.C. §§ 631, 633. There is no identifiable legal authority for Clark’s
claim that the statute is deficient for not establishing a specific number of MJs’
offices. The MJ in this case otherwise had the authority to consider and issue
a recommendation as to Clark’s § 2241 petition. See 28 U.S.C. § 636(b)(1)(B).
      Given the foregoing, the judgment of the district court is AFFIRMED.
