Butler v. Pettiford

* 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this opinion should not be published and is not precedent except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
February 23, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60626
Conference Calendar
ADAM BUTLER, II,
Petitioner-Appellant,
versus
MICHAEL PETTIFORD,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:04-CV-71-RSu
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Adam Butler, II, federal prisoner # 16645-001, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition.
Relying on Bailey v. United States, 516 U.S. 137 (1995), Butler
filed the petition to attack his conviction in the Northern
District of Alabama for use of a firearm in relation to a drug
crime.
Butler contends that his Bailey claim falls within the
savings clause in 28 U.S.C. § 2255. “[T]he savings clause of
§ 2255 applies to a claim (i) that is based on a retroactively

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applicable Supreme Court decision which establishes 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).
Because his conviction became final prior to the effective
date of the Antiterrorism and Effective Death Penalty Act, Butler
had until April 23, 1997, to file a 28 U.S.C. § 2255 motion. See
Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998).
Butler has not shown that his Bailey claim was foreclosed by
circuit law at the time when he should have raised the claim in
his first 28 U.S.C. § 2255 motion. Accordingly, the judgment of
the district court is AFFIRMED.

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