     Case: 17-30555       Document: 00514512489         Page: 1     Date Filed: 06/14/2018




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

                                                                                 FILED
                                     No. 17-30555                            June 14, 2018
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
DARRELL WAYNE COLLINS,

                                                  Petitioner - Appellant

v.

J.A. BARNHART, Warden, Federal Correctional Institution Pollock,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:17-CV-335


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Darrell Wayne Collins, federal prisoner # 14482-064 and proceeding pro
se, contests the dismissal of his 28 U.S.C. § 2241 petition, which challenges the
25-year sentence imposed after a jury found him guilty of eight counts relating
to his involvement in a cocaine-distribution conspiracy, in violation of 21
U.S.C. §§ 846, 841(a)(1), and 843(b). He claims, pursuant to Mathis v. United
States, 136 S. Ct. 2243 (2016), and United States v. Hinkle, 832 F.3d 569 (5th


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-30555

Cir. 2016): his previous Oklahoma state conviction for second-degree burglary
no longer qualifies as a predicate offense for purposes of the Armed Career
Criminal Act; and, therefore, the court erroneously sentenced him as a career
offender.
      In contending he is entitled to invoke the savings clause of 28 U.S.C.
§ 2255, Collins maintains: (1) any remedy under § 2255 would be inadequate
to test the legality of his detention because his § 2241 petition is based on a
claim of actual innocence due to statutory interpretation; (2) both Mathis and
Hinkle have retroactive effect in this circuit; and (3) failure to provide relief
would result in a miscarriage of justice because the sentencing enhancement
was a “grave” error. For the reasons that follow, the dismissal was proper.
      The dismissal of a § 2241 petition is reviewed de novo. Kinder v. Purdy,
222 F.3d 209, 212 (5th Cir. 2000). “A section 2241 petition that seeks to
challenge the validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.” Pack v. Yusuff, 218 F.3d 448, 452 (5th
Cir. 2000) (emphasis added).
      In that regard, a § 2241 petition attacking custody resulting from a
federally imposed sentence may be entertained under § 2255’s savings clause
if petitioner establishes 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). To satisfy that standard, Collins must establish his claim:
is “(i) . . . based on a retroactively applicable Supreme Court decision which
establishes that [he] may have been convicted of a nonexistent offense and (ii)
. . . 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 v. United
States, 243 F.3d 893, 904 (5th Cir. 2001) (emphasis added).




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                                 No. 17-30555

      The first “factor requires that a retroactively applicable Supreme Court
decision establish that the petitioner is actually innocent”, meaning he “may
have been imprisoned for conduct that was not prohibited by law”. Jeffers v.
Chandler, 253 F.3d 827, 830–31 (5th Cir. 2001) (internal quotation marks and
citation omitted). Collins’ assertions the court erred in sentencing him as a
career offender do not meet this standard because the claims do not rely on a
retroactively applicable Supreme Court decision showing he was convicted of
a nonexistent offense. Padilla v. United States, 416 F.3d 424, 427 (5th Cir.
2005). Additionally, a remedy under § 2255 is not inadequate or ineffective
based solely on Collins’ previous § 2255 motion being unsuccessful or because
any of Collins’ subsequently filed § 2255 motions will likely be classified as
successive and, thus, barred. Jeffers, 253 F.3d at 830; Kinder, 222 F.3d at 213.
      AFFIRMED.




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