     Case: 11-10955     Document: 00511827895         Page: 1     Date Filed: 04/19/2012




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

                                                                            FILED
                                                                           April 19, 2012
                                     No. 11-10955
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

PEDRO OSEQUERA MORALES,

                                                  Petitioner-Appellant

v.

REBECCA TAMEZ,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-57


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Pedro Osequera Morales, federal prisoner # 25327-018, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction.
Osequera Morales argues that he is actually innocent of the offense of conviction.
He contends that he pleaded guilty to an indictment that charged him with a
violation of 21 U.S.C. § 841(b)(1)(D), which provides a maximum sentence of five
years. Therefore, he argues that his 195-month sentence is invalid because it
exceeds the statutory maximum sentence for the offense to which he pleaded

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10955   Document: 00511827895      Page: 2   Date Filed: 04/19/2012

                                  No. 11-10955

guilty. Osequera Morales contends that his claim falls within the savings clause
of 28 U.S.C. § 2255 because it is based on Begay v. United States, 553 U.S. 137
(2008), which is retroactively applicable to his case on collateral review.
      A petitioner can attack the validity of his conviction and sentence in a
§ 2241 petition only if he can meet the requirements of the savings clause of
§ 2255(e). Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). The petitioner
shoulders the burden of affirmatively showing that the remedy under § 2255
would be “inadequate or ineffective to test the legality of his detention.”
§ 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
      The Court held in Begay that a conviction for driving under the influence
of alcohol was not a “violent felony” within the meaning of the residual clause of
the Armed Career Criminal Act. Begay, 553 U.S. at 148. Thus, the holding in
Begay has no relevance to Osequera Morales’s case. Additionally, Begay is not
retroactively applicable to cases on collateral review. In re Bradford, 660 F.3d
226, 230-31 (5th Cir. 2011).
      Osequera Morales has not shown that his claim “is based on a
retroactively applicable Supreme Court decision which establishes that [he] may
have been convicted of a nonexistent offense.” See Reyes-Requena, 243 F.3d at
904. Thus, he has not shown that he is entitled to proceed under the savings
clause of § 2255. See § 2255(e); Reyes-Requena, 243 F.3d at 904. Accordingly,
the judgment of the district court is AFFIRMED. The Respondent’s motion for
summary affirmance is GRANTED, and its alternative motion for an extension
of time in which to file a brief is DENIED.




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