Thomas v. Bureau of Prisons, 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60831
Summary Calendar
ECLINTON THOMAS,
Petitioner-Appellant,
versus
BUREAU OF PRISONS; WARDEN YUSUFF,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-195-BrS
--------------------
May 22, 2002
Before Davis, Benavides, and Clement, Circuit Judges.
PER CURIAM:*
Eclinton Thomas, federal prisoner # 28955-018, sentenced in
the Middle District of Florida, appeals the district court’s
dismissal, for lack of jurisdiction, of his 28 U.S.C. § 2241
petition. Thomas argued in his petition that his conviction and
sentence were unconstitutional under Apprendi v. New Jersey, 466
U.S. 530 (2000). He also alleged that his remedy under 28 U.S.C.
§ 2255 was inadequate or ineffective to test the legality of his

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detention.
A 28 U.S.C. § 2241 petition that attacks custody resulting
from a federally-imposed sentence may be entertained if the
petitioner establishes that the remedy provided for under 28
U.S.C. § 2255 is inadequate or ineffective to test the legality
of his detention. See Reyes-Requena v. United States, 243 F.3d
893, 904 (5th Cir. 2001). The “savings clause” of 28 U.S.C.
§ 2255 “applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which establishes that
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.” Id. Thomas bears the burden of showing
that he meets the requirements of the savings clause. See id.
at 901.
We have no occasion to decide whether Apprendi is “a
retroactively applicable . . . decision” within the meaning of
the first prong of the savings clause because Thomas has not met
his burden under the second prong to show that his Apprendi claim
“was foreclosed by circuit law at the time when the claim should
have been raised in [his] trial, appeal, or first § 2255 motion.”
Id. at 904. The Apprendi decision was handed down before Thomas
was sentenced, and thus it was available to Thomas both at
sentencing and on direct appeal. In re Joshua, 224 F.3d 1281,
1283 (11th Cir. 2000), on which Thomas relies, does not show that

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Eleventh Circuit precedent foreclosed an Apprendi claim during
the relevant time frame. As Thomas has not established that his
claim falls within the savings clause of 28 U.S.C. § 2255, he has
not shown that the district court’s dismissal of his petition for
lack of jurisdiction was error. See Ojo v. INS, 106 F.3d 680,
683 (5th Cir. 1997). Accordingly, the district court’s judgment
is AFFIRMED.

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