     Case: 11-30931     Document: 00511871108         Page: 1     Date Filed: 05/30/2012




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

                                                                            FILED
                                                                           May 30, 2012
                                     No. 11-30931
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

FREDERICK DEVANE REED,

                                                  Petitioner-Appellant

v.

J. P. YOUNG,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CV-974


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Frederick Devane Reed, federal prisoner # 11084-021, appeals the
dismissal of his 28 U.S.C. § 2241 petition, wherein he challenged the 188-month
sentence imposed following his conviction in the Southern District of Georgia for
possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). The
district court determined that Reed’s challenge to his sentence as an armed
career criminal under 18 U.S.C. § 924(e) could not proceed under the savings
clause of 28 U.S.C. § 2255(e). It determined that it lacked jurisdiction to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30931

consider the claim, and it dismissed the action with prejudice. We review the
district court’s dismissal de novo. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir.
2000).
      A prisoner can attack the validity of his federal criminal judgment 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
bears the burden of affirmatively showing that the remedy under § 2255 would
be “inadequate or ineffective to test the legality of his detention.” Reyes-Requena
v. United States, 243 F.3d 893, 901 (5th Cir. 2001). A prior unsuccessful § 2255
motion does not make § 2255 “inadequate.” Id. at 901-02. The fact that future
§ 2255 motions will likely be considered successive or untimely is also
insufficient to invoke the savings clause. See Pack, 218 F.3d at 452. Rather, a
prisoner who wishes to proceed under the savings clause must make a showing
of both actual innocence and retroactivity. Reyes-Requena, 243 F.3d at 903. A
petitioner makes this showing by establishing that his claim (1) “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and (2) “was
foreclosed by circuit law at the time when the claim should have been raised in
the petitioner’s trial, appeal, or first § 2255 motion.” Id. at 904.
      Reed contends the district court erred in applying this circuit’s test for the
savings clause, as set forth in Reyes-Requena. He argues that the savings clause
test for the circuit of conviction (here, the Eleventh Circuit), should instead be
applied. The district court did not err in applying Reyes-Requena, which is
binding precedent in this circuit. See Wesson v. U.S. Penitentiary Beaumont, TX,
305 F.3d 343, 347 (5th Cir. 2002).
      Further, we find no error in the district court’s determination that it
lacked jurisdiction over Reed’s claim, which did not satisfy this court’s savings
clause test. See Reyes-Requena, 243 F.3d at 903-04; Pack, 218 F.3d at 451-53.
However, because the district court lacked jurisdiction, its judgment should

                                         2
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                                   No. 11-30931

reflect that Reed’s claim was dismissed without prejudice. See Pack, 218 F.3d
at 454-55. Accordingly, we hereby modify in part the district court’s judgment
to reflect that its dismissal was with prejudice as to the jurisdictional issue and
without prejudice as to the merits of Reed’s claim. See id.
      Reed contends that the district court erred in denying his request to
transfer his petition to the court of proper jurisdiction. In this regard, Reed, who
is now incarcerated in Florida, asserts that the Eleventh Circuit permits
sentencing claims such as his to proceed under the savings clause. Above all, in
light of our conclusion that his claim properly was dismissed without prejudice,
he has not established that it was in the interest of justice to transfer the action.
See 28 U.S.C. § 1631.
      JUDGMENT MODIFIED IN PART; AFFIRMED AS MODIFIED.




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