     Case: 11-10435     Document: 00511843753         Page: 1     Date Filed: 05/03/2012




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

                                                                            FILED
                                                                            May 3, 2012

                                       No. 11-10435                        Lyle W. Cayce
                                                                                Clerk

DAVID MCINTOSH,

                                                  Petitioner - Appellant,
v.

WARDEN REBECCA TAMEZ,

                                                  Respondent - Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-107


Before STEWART, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Pro se petitioner David McIntosh appeals the dismissal of his habeas
petition brought under 28 U.S.C. § 2241. That petition asserts that McIntosh is
actually innocent of money laundering in light of the Supreme Court’s
interpretation of the federal money-laundering statute in United States v.
Santos, 553 U.S. 507 (2008). McIntosh argues that his petition may be brought
pursuant to § 2241 because it meets the requirements of the “savings clause” of
28 U.S.C. § 2255(e). Applying our savings clause precedent, the district court

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 11-10435

determined that McIntosh may not properly proceed under § 2241 because his
Santos claim was not “foreclosed by existing circuit precedent had he raised it
in his original § 2255 motion.” We agree with the district court and AFFIRM its
dismissal of McIntosh’s petition.
                                         I.
      After a jury trial, McIntosh was convicted of 24 of 25 counts of an
indictment that charged him with conspiracy, mail and wire fraud, interstate
transportation of fraudulently taken property, conspiracy to launder monetary
instruments, and money laundering. He was sentenced to concurrent terms of
imprisonment of 60, 120, and 168 months. We affirmed McIntosh’s conviction
and sentence. United States v. McIntosh, 280 F.3d 479 (5th Cir. 2002).
      In February 2008, McIntosh filed a 28 U.S.C. § 2255 motion in the
Western District of Texas, the district court that convicted and sentenced him.
On June 2, 2008, the Supreme Court decided Santos, holding that the term
“proceeds” in the money-laundering statute, 18 U.S.C. § 1956(a)(1), is ambiguous
and must be interpreted to mean “profits” rather than gross “receipts” in certain
circumstances. 553 U.S. at 523–24. More than two weeks later, on June 16,
McIntosh’s counsel filed a reply to the government’s response in opposition to
McIntosh’s § 2255 motion. That reply did not mention Santos. The magistrate
judge then recommended that McIntosh’s motion be dismissed as untimely
under § 2255(f). On July 14, 2008, McIntosh’s counsel filed objections to the
magistrate’s report and recommendation. The objections again made no mention
of Santos. On July 16, the district court adopted the magistrate’s report and
recommendation and dismissed McIntosh’s § 2255 motion as time-barred under
§ 2255(f).
      More than two years later, on December 16, 2010, McIntosh filed the
instant habeas petition under § 2241 in connection with § 2255’s savings clause.
McIntosh filed the petition in the Western District of Texas, but that court

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                                       No. 11-10435

transferred the petition to the Northern District of Texas because that is the
district in which McIntosh is incarcerated. See Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000) (“A section 2241 petition . . . must be filed in the same district
where the prisoner is incarcerated.”).             The Northern District dismissed
McIntosh’s petition, concluding that he failed to satisfy the requirements of
§ 2255’s savings clause because he could have raised his Santos claim in his
original § 2255 motion. This appeal timely followed.1
                                             II.
       Section 2255 “is the primary means of collaterally attacking a federal
sentence.” Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000) (per curiam).
Accordingly, “[s]ection 2255 ‘channels collateral attacks by federal prisoners to
the sentencing court . . . so that they can be addressed more efficiently.’” Reyes-
Requena v. United States, 243 F.3d 893, 901 n.18 (5th Cir. 2001) (quoting
Triestman v. United States, 124 F.3d 361, 373 (2d Cir. 1997)). Section 2241, in
contrast, typically “attacks the manner in which a sentence is carried out or the
prison authorities’ determination of its duration.” Pack, 218 F.3d at 451.
       Nevertheless, a federal prisoner may challenge the legality of his
conviction or sentence under § 2241 if he “can satisfy the mandates of the
so-called § 2255 ‘savings clause.’” Reyes-Requena, 243 F.3d at 901. The savings
clause provides:
       An application for a writ of habeas corpus in behalf of a prisoner
       who is authorized to apply for relief by motion pursuant to this
       section, shall not be entertained if it appears that the applicant has
       failed to apply for relief, by motion, to the court which sentenced
       him, or that such court has denied him relief, unless it also appears
       that the remedy by motion is inadequate or ineffective to test the
       legality of his detention.



       1
         Because McIntosh is seeking habeas relief under § 2241, he was not required to obtain
a certificate of appealability. Christopher v. Miles, 342 F.3d 378, 381 n.1 (5th Cir. 2003).

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§ 2255(e) (emphasis added). We have stressed that “§ 2241 is not a mere
substitute for § 2255 and that the inadequacy or inefficacy requirement is
stringent.” Reyes-Requena, 243 F.3d at 901.
       This circuit has interpreted § 2255(e)’s savings clause as encompassing
three requirements for a § 2241 petition to proceed: (1) the petition “raises a
claim that is based on a retroactively applicable Supreme Court decision”; (2) the
claim was “foreclosed by circuit law at the time when it should have been raised
in petitioner’s trial, appeal or first § 2255 motion”; and (3) the “retroactively
applicable decision establishes that the petitioner may have been convicted of a
nonexistent offense.”        Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010)
(alteration and internal quotation marks omitted). The petitioner bears the
burden of establishing each of these elements. Id.
       The district court determined that McIntosh’s petition does not meet the
second of these requirements because he could have raised his Santos claim in
his first § 2255 motion. McIntosh challenges that determination and argues that
he is able to satisfy each savings clause requirement. We review de novo a
dismissal of a § 2241 petition on the pleadings. Pack, 218 F.3d at 451.
       McIntosh indisputably satisfies the first § 2255(e) requirement because we
have previously held that Santos is a retroactively applicable Supreme Court
decision. Garland, 615 F.3d at 396–97. Nevertheless, we agree with the district
court that McIntosh cannot satisfy the second § 2255(e) requirement. Prior to
Santos, circuit precedent foreclosed McIntosh’s claim. Id. at 398–99. But Santos
removed that barrier on June 2, 2008. At that time, McIntosh’s first § 2255
motion was pending. The district court did not dismiss the motion until more
than six weeks later, on July 16. At any time during this period, McIntosh could
have sought leave to amend his motion to add his Santos claim. He did not.2

       2
         In his reply brief, McIntosh argues that the “six week window described by the district
court for McIntosh to present his Santos claim was prevented by his incarceration. McIntosh

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                                      No. 11-10435

Moreover, McIntosh had multiple opportunities to raise Santos before the
district court. On June 16 he filed a reply to the government’s opposition and on
July 14 he filed objections to the magistrate’s report and recommendation. In
neither filing did he mention Santos.              Given the six weeks during which
McIntosh could have amended his motion, the discrete opportunities to do so
that he failed to take advantage of, and the fact that he was represented by
counsel throughout, we are satisfied that McIntosh’s Santos claim “should have
been raised in [his] . . . first § 2255 motion.” Id. at 394. Accordingly, we need not
consider the third § 2255(e) requirement, and we conclude that McIntosh has
failed to meet the stringent requirements of the savings clause. His § 2255
motion, in the words of the statute, was not “inadequate or ineffective to test the
legality of his detention.” § 2255(e).
                                            III.
       The district court’s dismissal of McIntosh’s § 2241 petition is AFFIRMED.
McIntosh’s motion for leave to file his reply brief out of time is GRANTED.




would not have been able to read the Supreme Court decision in Santos until months after the
decision when prison law library materials are updated.” While we have no reason to doubt
McIntosh’s account, it is beside the point because McIntosh was represented by counsel during
that time. The question before us is whether McIntosh’s counsel “should have . . . raised”
Santos in McIntosh’s first § 2255 motion. Garland, 615 F.3d at 394. We need not address
whether the same analysis would apply had McIntosh been proceeding pro se in 2008.

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