Ronald King v. Eric Wilson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-11488
Summary Calendar

RONALD KING,

Petitioner-Appellant

v.

ERIC D. WILSON,

Respondent-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-868

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Ronald King, federal prisoner # 35076-177, appeals the dismissal of his
28 U.S.C. § 2241 petition challenging his convictions for conspiracy to possess
with intent to distribute cocaine and conspiracy to commit money laundering.
King argues that: (1) the district court violated his due process rights by failing
to expand the record to include an affidavit from Shelby King; (2) the district
court improperly dismissed his § 2241 petition without fully examining the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 8, 2020

Lyle W. Cayce
Clerk
Case: 18-11488 Document: 00515263776 Page: 1 Date Filed: 01/08/2020

No. 18-11488
2
merits of his allegations; and (3) he is actually innocent of his counts of
conviction. We review de novo a district court’s dismissal of a § 2241 petition
on the pleadings for lack of jurisdiction. Pack v. Yusuff, 218 F.3d 448, 451 (5th
Cir. 2000).
A prisoner challenging the validity of his conviction ordinarily must do
so under 28 U.S.C. § 2255 and may proceed under § 2241 only if he shows that
his § 2255 remedy was inadequate or ineffective. Id. at 451-52. To do so, he
must raise a claim “(i) that is based on a retroactively 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).
King has not satisfied the Reyes-Requena standard because he is not
relying on a retroactively applicable Supreme Court decision establishing that
he may have been convicted of a nonexistent offense. His reliance on, and
attempt to include in the record, a new affidavit is improper because it is
offered for the first time before this court. See F
ED. R. APP. P. 10(a); Theriot v.
Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). King has not shown
that the district court erred by dismissing his § 2241 petition without
conducting an evidentiary hearing or examining the merits of his underlying
claims. Moreover, his actual innocence argument under McQuiggin v. Perkins,
569 U.S. 383, 386 (2013), is unavailing in this context.
AFFIRMED.
Case: 18-11488 Document: 00515263776 Page: 2 Date Filed: 01/08/2020