     Case: 14-40507      Document: 00512988118         Page: 1    Date Filed: 03/31/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40507
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 31, 2015
TIMOTHY DANIELS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

UNITED STATES PENITENTIARY WARDEN,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:14-CV-132


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Timothy Daniels, federal prisoner # 24703-009, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition. Relying on Descamps v.
United States, 133 S. Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S. Ct. 1678
(2013), Daniels argues that the district court erroneously determined that he
was an armed career criminal pursuant to U.S.S.G. § 4B1.4(a), resulting in a
higher advisory sentencing range under the Sentencing Guidelines.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40507     Document: 00512988118     Page: 2   Date Filed: 03/31/2015


                                  No. 14-40507

      The district court determined that Daniels had not met the criteria for
proceeding under the savings clause of 28 U.S.C. § 2255, which allows a federal
prisoner to attack the legality of his conviction in a § 2241 petition if he can
show that the remedies provided under § 2255 are “inadequate or ineffective
to test the legality of his detention.” § 2255(e). The district court determined
that because Daniels was raising a claim of sentencing error, his claim was
outside the scope of § 2241.
      A prisoner seeking to establish that his § 2255 remedy is inadequate or
ineffective must make a claim (i) “based on a retroactively applicable Supreme
Court decision which establishes that the petitioner may have been convicted
of a nonexistent offense” 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). Neither Descamps nor Moncrieffe has any effect on whether the facts of
Daniels’s case would support his conviction for the substantive offense;
therefore, neither is a retroactively applicable Supreme Court decision
indicating that he was convicted of a nonexistent offense. See, e.g., Wesson v.
U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002). Moreover,
claims relating to sentencing determinations do not fall within the savings
clause and are not cognizable under § 2241, even where the petitioner asserts
a “miscarriage of justice” or actual innocence relating to the alleged sentencing
errors. See, e.g., Preston v. Ask-Carlson, 583 F. App’x 462, 463 (5th Cir. 2014);
Torres v. Young, 457 F. App’x. 427, 429 (5th Cir. 2012).
      Accordingly, the judgment of the district court is AFFIRMED. Daniels’s
motion to stay the proceedings is DENIED.




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