     Case: 10-41183     Document: 00511516972          Page: 1    Date Filed: 06/22/2011




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

                                                 FILED
                                                                            June 22, 2011
                                     No. 10-41183
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TERRANCE LAYTON VELTMAN,

                                                   Petitioner–Appellant

v.

JODY UPTON, Warden,

                                                   Respondent–Appellee


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:10-CV-572


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Terrance Layton Veltman, federal prisoner # 38831-179, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition. Veltman contends that
his 150-month sentence for bank burglary was unreasonable because the court
miscalculated his guidelines offense level, and that he is entitled to § 2241 relief
under the savings clause of 28 U.S.C. § 2255.
        Section 2255 provides the primary means of collaterally attacking a
federal conviction and sentence, while Section 2241 is the proper vehicle used 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-41183

challenge the manner in which a sentence is executed. See Padilla v. United
States, 416 F.3d 424, 425–26 (5th Cir. 2005). Veltman’s § 2241 petition is not
challenging the manner in which his sentence is being executed, but is instead
challenging the legality of his sentence.
      Veltman may use Section 2241 as the vehicle for attacking his sentence
nonetheless, but only if he establishes that § 2255 is inadequate or ineffective to
test the legality of his detention. Padilla, 416 F.3d at 426. Veltman bears the
burden of proving that § 2255 is an inadequate or ineffective remedy. Id. This
requires showing that: (1) his claim “is based on a retroactively applicable
Supreme Court decision which establishes that the petitioner 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 the petitioner’s trial,
appeal, or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001). To meet the first, or actual innocence, prong of this test,
Veltman must prove that, based on a retroactively applicable Supreme Court
decision, he was convicted for conduct that did not constitute a crime. See Jeffers
v. Chandler, 253 F.3d 827, 830–31 (5th Cir. 2001).
      Although Veltman attempts to frame his argument as an actual innocence
claim, the argument in fact challenges only the procedural reasonableness of his
sentence under Gall v. United States, 552 U.S. 38 (2007). Veltman has not
shown that he was convicted of a nonexistent offense as required by Reyes-
Requena. See id., 243 F.3d at 900; see also Kinder v. Purdy, 222 F.3d 209, 213
(5th Cir. 2000).    Furthermore, Veltman has not provided any authority
demonstrating that Gall or its predecessor, United States v. Booker, 543 U.S. 220
(2005), to which Veltman also cites, have been made retroactive to cases on
collateral review. Compare United States v. Gentry, 432 F.3d 600, 604 (5th Cir.
2005) (holding that Booker does not apply retroactively on collateral review to
an initial § 2255 motion); Reyes-Requena, 243 F.3d at 900. In addition, Veltman
has not shown that his claims were foreclosed by circuit law. Accordingly,

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                               No. 10-41183

Veltman has not shown that the district court erred in dismissing his § 2241
petition.
      AFFIRMED.




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