Davis v. Hastings

* 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that this opinion should not be published and is not precedent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
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41382
Conference Calendar
TERRY HALL DAVIS,
Petitioner-Appellant,
versus
SUZANNE HASTINGS, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-143
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Terry Hall Davis, federal prisoner # 09290-002, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition
challenging his convictions for assault with intent to murder and
for carrying a firearm in relation to a crime of violence. In
his petition, Davis argued that he was actually innocent of the
assault charge because he lacked the requisite mens rea and that
he was denied due process during the plea proceedings because the

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No. 03-41382
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district court participated in plea negotiations. Because these
challenges involve errors occurring at trial, the district court
properly construed the petition as a 28 U.S.C. § 2255 motion.
See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
Davis contends that he is entitled to proceed under the
“savings clause” of 28 U.S.C. § 2255 because he has shown he was
actually innocent of the assault offense. Davis has not met his
burden of showing that he meets the requirements for filing a 28
U.S.C. § 2241 petition under the savings clause of 28 U.S.C.
§ 2255. He has not pointed to a retroactively applicable Supreme
Court decision establishing that he may have been imprisoned for
conduct that was not prohibited by law. See Christopher v.
Miles, 342 F.3d 378, 382 (5th Cir.), cert. denied, 124 S. Ct. 950
(2003). Davis also has not shown that his claims were foreclosed
by circuit law at the time of his conviction, appeal, or prior 28
U.S.C. § 2255 motion. See id. Davis’s reliance on Schlup v.
Delo, 513 U.S. 298, 326-27 (1995), is unavailing; the district
court did not rely on a state procedural bar to deny relief on
Davis’s claims. Accordingly, the judgment of the district court
is AFFIRMED.

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