Wise v. Fleming

* 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that this opinion should not be published and is not precedent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 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10955
Conference Calendar
JOHNIE WISE,
Petitioner-Appellant,
versus
L.E. FLEMING, Warden, Federal Medical Center - Fort Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-224-Y
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Johnie Wise, federal inmate #82281-079, appeals the district
court’s dismissal of his 28 U.S.C. § 2241 petition. A jury
convicted Wise of two counts of threatening to use a weapon of
mass destruction and aiding and abetting. United States v. Wise,
221 F.3d 140, 147 (5th Cir. 2000). The district court sentenced
Wise to concurrent terms of 292 months of imprisonment and five
years of supervised release. Id.

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No. 03-10955
-2-
Wise asserts that his 28 U.S.C. § 2241 petition satisfied
the criteria necessary to proceed under the “savings clause” of
28 U.S.C. § 2255. He contends that his petition raised a novel
issue concerning the Government’s alleged failure to establish
commercial injury. Wise asserts that commercial injury is an
essential element of the crime of conviction. He argues that
novel claims can never be procedurally barred and that 28 U.S.C.
§ 2255 is inadequate or ineffective because it does not offer a
remedy. He contends that the district court’s dismissal of his
petition amounts to an unconstitutional suspension of the writ of
habeas corpus.
Wise has not met his burden of showing that the remedy
provided under 28 U.S.C. § 2255 is inadequate or ineffective to
test the legality of his detention. Wesson v. U.S. Penitentiary
Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002), cert. denied,
537 U.S. 1241 (2003). He has not identified a retroactively
applicable Supreme Court decision which establishes that he may
have been imprisoned for conduct that was not prohibited by law.
He has not shown that his claims were foreclosed by circuit law
when the claims should have been raised, i.e., at his trial, on
appeal, or in an initial 28 U.S.C. § 2255 motion. Wesson, 305
F.3d at 347.
We have rejected previously Wise’s Suspension Clause
argument. See id. at 346-47. Accordingly, the judgment of the
district court is AFFIRMED.

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