Tillman v. US Penitentiary, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 9, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40872
Conference Calendar
BENJAMIN TILLMAN,
Petitioner-Appellant,
versus
UNITED STATES PENITENTIARY; R. D. MILES, Warden,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-314
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Benjamin Tillman, federal inmate # 04060-017, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition.
Because Tillman’s 28 U.S.C. § 2241 petition challenged the
legality of his conviction, Tillman was required to show that 28
U.S.C. § 2255 provided him with an inadequate or ineffective
remedy. See Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).
“[T]he savings clause of § 2255 applies to a claim (i) that is
based on a retroactively applicable Supreme Court decision which

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No. 03-40872
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established that the petitioner may have been convicted of a
nonexistent offense and (ii) that 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 bring his claim under the “savings clause,” Tillman
argues that he could not have brought the instant claim that the
sentencing court was without jurisdiction to sentence him until
1998, when the Eleventh Circuit issued Harris v. United States,
149 F.3d 1304 (11th Cir. 1998). Harris, however, is not a
retroactively applicable Supreme Court decision establishing that
Tillman may have been convicted of a nonexistent offense.
Because Tillman fails to identify any authority demonstrating
that he was convicted of a non-existent offense, his
jurisdictional challenge to his conviction fails to satisfy the
first prong of the Reyes-Requena test. The district court’s
dismissal of Tillman’s 28 U.S.C. § 2241 petition is therefore
AFFIRMED.

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