     Case: 18-11272       Document: 00514980351         Page: 1     Date Filed: 06/03/2019




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

                                                                                 FILED
                                     No. 18-11272                             June 3, 2019
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
PAUL R. BUTTS,

                                                  Petitioner - Appellant

v.

ERIC D. WILSON, Warden, FMC-Fort Worth,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CV-1033


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Paul R. Butts, federal prisoner # 84674-008 and proceeding pro se,
challenges the dismissal of his 28 U.S.C. § 2241 petition, in which he contests
his convictions in 2008 for distributing and possessing child pornography, in
violation of 18 U.S.C. §§ 2252A and 2256, and his resulting sentence of, inter
alia, 220-months’ imprisonment. He asserts on appeal: he is actually innocent
of the charged offenses; the district court in 2008 lacked jurisdiction because


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-11272     Document: 00514980351      Page: 2    Date Filed: 06/03/2019


                                  No. 18-11272

the Government failed to allege or prove that any of the images he possessed
or distributed had traveled in interstate commerce; and the immediate district
court’s refusal to consider the claim results in a complete miscarriage of justice.
      The dismissal of Butts’ § 2241 petition is reviewed de novo. Padilla v.
United States, 416 F.3d 424, 425 (5th Cir. 2005). In that regard, a prisoner
may use § 2241 to challenge his conviction only if the remedy under 28 U.S.C.
§ 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, to meet the
savings clause of § 2255(e), Butts must establish the inadequacy or
ineffectiveness of a § 2255 motion. 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). To satisfy that clause, he must show his petition states a claim
that: “is based on a retroactively applicable Supreme Court decision which
establishes . . . [he] may have been convicted of a nonexistent offense”; and
“was foreclosed by circuit law at the time when the claim should have been
raised in [his] trial, appeal, or first § 2255 motion”. Reyes-Requena, 243 F.3d
at 904.
      Butts has waived—by failing to brief—any contention challenging the
district court’s conclusion that his claim did not qualify for savings-clause relief
because it did not rely on any retroactively applicable Supreme Court decision.
See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993); Brinkmann v.
Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Along that
line, he has not identified a retroactively applicable Supreme Court decision
concerning whether he was convicted of conduct that is not a crime. See
Padilla, 416 F.3d at 425–26.




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                                 No. 18-11272

      Although Butts urges that the court’s refusal to consider his claim
results in a miscarriage of justice, the true nature of his complaint is that he
cannot meet the requirements for filing a successive § 2255 motion, but he
should nevertheless be allowed to proceed because his claim is based on new
circuit-court decisions not available at the time of his conviction. As the court
concluded correctly, however, Butts’ inability to meet the requirements for
filing a successive § 2255 motion does not entitle him to proceed under § 2241.
See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
      AFFIRMED.




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