     Case: 15-40553      Document: 00513430043         Page: 1    Date Filed: 03/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40553
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 18, 2016
JAMES D. LOGAN,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

WARDEN FEDERAL CORRECTIONAL COMPLEX BEAUMONT,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:15-CV-39


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       James D. Logan, federal prisoner # 05951-090, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition, brought pursuant to the
“savings clause” in 28 U.S.C. § 2255(e). In 2005 in the Western District of
Wisconsin, Logan pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and he was sentenced to the 15-year
mandatory minimum required by the Armed Career Criminal Act (“ACCA”),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40553

18U.S.C. § 924(e)(1). In his current challenge to his sentence in his § 2241
petition, Logan argued that because Wisconsin repeater misdemeanors, such
as his, no longer qualify as violent felonies, the sentencing court erred in
sentencing him under the ACCA, and he should be resentenced to the 10-year
statutory minimum under § 922(g)(1) without the ACCA enhancement. The
district court determined that Logan had not met the criteria for proceeding
under the savings clause.
      A certificate of appealability (“COA”) is not required to appeal the denial
of a federal prisoner’s § 2241 petition. Padilla v. United States, 416 F.3d 424,
425 (5th Cir. 2005). Accordingly, Logan’s motion for a COA is DENIED.
      We review de novo the district court’s legal conclusions. Id. “Section
2255 provides the primary means of collaterally attacking a federal sentence,
and is the appropriate remedy for errors that occurred at or prior to the
sentencing.” Id. at 425-26 (internal quotation marks and citations omitted).
Under the “savings clause” of § 2255, a federal prisoner may challenge the
legality of his detention in a § 2241 petition only if he shows that remedy under
§ 2255 would be “inadequate or ineffective.” See § 2255(e); Padilla, 416 F.3d
at 426. To do so, he must show that: (1) his claim is based on a retroactively
applicable Supreme Court decision which establishes that he may have been
convicted of a nonexistent offense; and (2) his claim 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); see Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010).
      A claim, such as Logan’s, that challenges only the validity of his sentence
fails to establish that he was convicted of a nonexistent offense, as required by
the first prong of Reyes-Requena. See Padilla, 416 F.3d at 426-27 (holding that
a petitioner’s claim that his terms of imprisonment exceeded the statutory



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                                 No. 15-40553

maximum for the charged offense did not fulfill the first prong of Reyes-
Requena); see also Kinder v. Purdy, 222 F.3d 209, 213-14 (5th Cir. 2000)
(holding that a claim that the § 2241 petitioner was actually innocent of being
a career offender under U.S.S.G. § 4B1.1 is not a claim that the petitioner is
actually innocent of the crime of conviction); In re Bradford, 660 F.3d 226, 230
(5th Cir. 2011) (same); Preston v. Ask-Carlson, 583 F. App’x 462, 463 (5th Cir.
2014) (“[C]laims 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.”).
      In one sentence, Logan cites to Persaud v. United States, 134 S. Ct. 1023
(2014), for the proposition that his “claim of unconstitutional sentencing is
properly raised in a section 2241 petition.” In Persaud, the Supreme Court
entered a grant, vacate, and remand (GVR) order for reconsideration by the
Fourth Circuit in light of the Solicitor General’s brief. 134 S. Ct. at 1023. A
GVR is not a substantive decision on the merits and thus does not satisfy
Reyes-Requena’s requirement of a retroactively applicable Supreme Court
decision. Kenemore v. Roy, 690 F.3d 639, 640-43 (5th Cir. 2012). In the absence
of an en banc decision by this court or an intervening Supreme Court decision
overruling circuit precedent holding that a § 2241 petition cannot be used to
challenge solely the validity of a federal sentence, this court is bound by its
own precedent. See United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).
      Accordingly, the judgment of the district court is AFFIRMED. Logan’s
motion for release on bail pending this appeal is DENIED.




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