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

                                                 FILED
                                                                            June 4, 2009
                                     No. 08-40678
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

MARK ANTHONY SHADE

                                                   Plaintiff-Appellant

v.

WARDEN KEITH ROY

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:07-CV-187


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Mark Anthony Shade, federal prisoner # 04410-063, appeals the district
court’s dismissal of his action that he characterized as an independent action in
equity. Shade had pleaded guilty in the Eastern District of Oklahoma to being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and to
carrying a firearm during and in relation to a drug trafficking crime and
possessing a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924. Shade argues that he was “twice punished for the same offense”

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 08-40678

because he received an enhancement based on prior convictions and that he was
“convicted and imprisoned for the impossibility of carrying a firearm” and being
a felon in possession of a firearm. Shade contends that he had no knowledge
that a firearm was sealed within the wall of the house that he was remodeling
and that the Government never introduced evidence that he carried a firearm
during a drug offense.
       One of the essential elements of an independent action in equity is a
showing of the absence of any adequate remedy at law. Bankers Mortgage Co.
v. United States, 423 F.2d 73, 79 (5th Cir. 1970). An “independent action cannot
be made a vehicle for the relitigation of issues.” Id. The Supreme Court has
further noted that an independent action in equity should be available only to
prevent a grave miscarriage of justice. United States v. Beggerly, 524 U.S. 38,
47 (1998). Shade essentially challenges the sufficiency of the evidence to support
his convictions and has shown only that he has not been satisfied with the
results of the at law remedies available to him. Shade’s action does not meet the
demanding standards for sustaining an independent action in equity.
       Since Shade’s action was not filed in the federal district court in which he
was convicted and sentenced, the district court did not have jurisdiction to
alternatively treat his action as a motion under 28 U.S.C. § 2255. See Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Because Shade did not assert that he
was convicted of an offense that is nonexistent as to all persons, his action also
did not meet the essential criteria of a claim under 28 U.S.C. § 2241 made in
conjunction with the savings clause of § 2255(e). See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001). To the extent that Shade makes an
argument similar to that of the petitioner in Reyes-Requena 1 – that the firearm

       1
         In Reyes-Requena, the petitioner was convicted of “using” a firearm, even though the
evidence was that the firearm was located in a bedroll. After Reyes-Requena’s conviction, the
United States Supreme Court construed the statute under which he was convicted to require
physical use of a firearm, not mere presence. Because the intervening Supreme Court decision
was one of statutory interpretation rather than constitutional law, Reyes-Requena was barred
from bringing the claim as a successive habeas. Accordingly, our court held that his case
presented the narrow situation where § 2241 relief was available because a new Supreme

                                             2
                                     No. 08-40678

was in the wall and, therefore, he could not have carried it during the drug
offense – his situation is different. Unlike the petitioner in that case, his current
argument was available to him at the time of his conviction, and he could have
raised it on direct appeal or in a timely § 2255 petition.
      Shade therefore filed an unauthorized action which the district court was
without jurisdiction to entertain. See United States v. Early, 27 F.3d 140, 142
(5th Cir. 1994).    Shade has appealed from the dismissal of a meaningless,
unauthorized action. Id. We affirm the dismissal on the basis that the district
court lacked jurisdiction to decide this case. Id.
      AFFIRMED.




Court case established a new rule that was previously unavailable by circuit precedent. By
contrast, Shade’s conviction came many years later at a time when he could have argued the
alleged lack of “carrying” in a timely fashion.

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