IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60231

Summary Calendar

DARRELL EUGENE BANKS,

Petitioner-Appellant

v.

UNKNOWN MOSELY, Federal Correctional Institute Yazoo City,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:14-CV-951

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Darrell Eugene Banks, federal prisoner # 23612-058, appeals the district 

court’s dismissal of his 28 U.S.C. § 2241 petition for habeas corpus relief. He 

also has filed a motion for appointment of counsel. Banks argued in the district 

court that he was actually innocent of the charges listed in the indictment, 

challenged the validity of his plea, and complained that his trial counsel was 

ineffective. He also contended that the rulings in United States v. Simmons, 

 

* 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

FILED

January 19, 2016

Lyle W. Cayce

Clerk

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No. 15-60231

2

649 F.3d 237 (4th Cir. 2011), and Miller v. United States, 735 F.3d 141 (4th 

Cir. 2013), provide grounds to reverse his conviction for being a felon in 

possession of a firearm. The district court denied relief, concluding that Banks 

failed to meet the requirements of the savings clause under 28 U.S.C. § 2255(e), 

which allows a federal prisoner to challenge his conviction under § 2241 if the 

remedies provided by § 2255 are “inadequate or ineffective to test the legality 

of his detention.” When addressing the denial of a § 2241 petition, we review 

the district court’s factual findings for clear error and its conclusions of law de 

novo. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).

A petitioner seeking to establish that his § 2255 remedy was inadequate 

or ineffective must make 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).

Banks fails to make the required showing. See id. He does not cite a 

retroactively applicable Supreme Court ruling establishing that he may have 

been convicted of a nonexistent offense, and he has not established that his 

claims were foreclosed at the time when they should have been raised at trial, 

on appeal, or in an initial § 2255 motion. See id. Moreover, the sentencing 

court rejected the same claims in a § 2255 motion to vacate, correct, or set aside 

the sentence. A prior unsuccessful § 2255 motion or the inability to meet the 

second or successive requirement for § 2255 motions does not render § 2255 

inadequate or ineffective. Jeffers, 253 F.3d at 830. Finally, Banks’s actual 

innocence argument is unavailing. See McQuiggin v. Perkins, 133 S. Ct. 1924, 

1928 (2013); Foster v. Quarterman, 466 F.3d 359, 367-68 (5th Cir. 2006).

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The judgment of the district court is AFFIRMED. The motion for 

appointment of counsel is DENIED.

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