     Case: 15-60231      Document: 00513347239         Page: 1    Date Filed: 01/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-60231                                 FILED
                                  Summary Calendar                        January 19, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
DARRELL EUGENE BANKS,

                                                 Petitioner-Appellant

v.

UNKNOWN MOSELY, Federal Correctional Institute Yazoo City,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:14-CV-951


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Darrell Eugene Banks, federal prisoner # 23612-058, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for habeas corpus relief. He
also has filed a motion for appointment of counsel. Banks argued in the district
court that he was actually innocent of the charges listed in the indictment,
challenged the validity of his plea, and complained that his trial counsel was
ineffective. He also contended that the rulings in United States v. Simmons,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60231     Document: 00513347239      Page: 2   Date Filed: 01/19/2016


                                  No. 15-60231

649 F.3d 237 (4th Cir. 2011), and Miller v. United States, 735 F.3d 141 (4th
Cir. 2013), provide grounds to reverse his conviction for being a felon in
possession of a firearm. The district court denied relief, concluding that Banks
failed to meet the requirements of the savings clause under 28 U.S.C. § 2255(e),
which allows a federal prisoner to challenge his conviction under § 2241 if the
remedies provided by § 2255 are “inadequate or ineffective to test the legality
of his detention.” When addressing the denial of a § 2241 petition, we review
the district court’s factual findings for clear error and its conclusions of law de
novo. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
      A petitioner seeking to establish that his § 2255 remedy was inadequate
or ineffective must make a claim “(i) that is based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may have been
convicted of a nonexistent offense and (ii) that 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).
      Banks fails to make the required showing. See id. He does not cite a
retroactively applicable Supreme Court ruling establishing that he may have
been convicted of a nonexistent offense, and he has not established that his
claims were foreclosed at the time when they should have been raised at trial,
on appeal, or in an initial § 2255 motion. See id. Moreover, the sentencing
court rejected the same claims in a § 2255 motion to vacate, correct, or set aside
the sentence. A prior unsuccessful § 2255 motion or the inability to meet the
second or successive requirement for § 2255 motions does not render § 2255
inadequate or ineffective. Jeffers, 253 F.3d at 830. Finally, Banks’s actual
innocence argument is unavailing. See McQuiggin v. Perkins, 133 S. Ct. 1924,
1928 (2013); Foster v. Quarterman, 466 F.3d 359, 367-68 (5th Cir. 2006).



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                             No. 15-60231

     The judgment of the district court is AFFIRMED.       The motion for
appointment of counsel is DENIED.




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