IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30729

Summary Calendar

DWAYNE ERIC REED,

Petitioner-Appellant

v.

REBECCA CLAY, Warden, Federal Correctional Institution Oakdale,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:15-CV-2368

Before JONES, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Petitioner Dwayne Eric Reed, federal prisoner # 03174-089, appeals the 

district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his bank 

robbery conviction in the Eastern District of Wisconsin. In his § 2241 petition, 

Reed raised claims that his rights under the Confrontation Clause were 

violated at his trial and that his trial counsel was ineffective. He also claimed 

that he was actually innocent of the offense. 

 

* 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

March 2, 2017

Lyle W. Cayce

Clerk

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On appeal, Reed maintains that the district court erred by requiring him 

to satisfy the savings clause of 28 U.S.C. § 2255(e). He also further contends 

that his Confrontation Clause claim based on Crawford v. Washington, 541 

U.S. 36 (2004), meets the requirements of the savings clause. We review de 

novo the dismissal of a § 2241 petition. Kinder v. Purdy, 222 F.3d 209, 212 

(5th Cir. 2000). 

“A section 2241 petition that seeks to challenge the validity of a federal 

sentence must either be dismissed or construed as a section 2255 motion.” 

Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). However, a § 2241 petition 

that attacks custody resulting from a federally imposed sentence may be 

entertained under the savings clause of § 2255 if the petitioner establishes that 

the remedy provided under § 2255 is “inadequate or ineffective” to test the 

legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). 

To make the showing required to proceed under the savings clause, Reed must 

establish that his claim is “(i) . . . based on a retroactively applicable Supreme 

Court decision which establishes that [he] . . . 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 [his] . . . trial, appeal, or first § 2255 

motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). 

This showing “requires that a retroactively applicable Supreme Court decision 

establish that the petitioner is actually innocent,” meaning that he “may have 

been imprisoned for conduct that was not prohibited by law.” Jeffers 

v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001) (internal quotation marks 

and citation omitted). 

The rule announced in Crawford is not retroactive to cases on collateral 

review. See Lave v. Dretke, 444 F.3d 333, 334-36 (5th Cir. 2006). Moreover, 

even if a hearsay statement was introduced at Reed’s trial in violation of the 

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rule announced in Crawford, or if Reed’s trial counsel was ineffective as 

claimed, neither would establish that Reed “may have been convicted of a 

nonexistent offense.” Reyes-Requena, 243 F.3d at 904. He therefore fails to 

establish that these claims satisfy the savings clause. See id. Nor has Reed 

shown that his claim of actual innocence provides an exception to the 

requirement that a petitioner first satisfy the savings clause of § 2255(e) to 

challenge his conviction and sentence in a § 2241 petition. 

Reed’s contention that the district court erred by dismissing his claims 

for lack of jurisdiction, and that it instead should have transferred his petition 

to a court of proper jurisdiction, lacks merit. “[A] federal court always has 

jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 

622, 628 (2002). Here, the district court for the Western District of Louisiana

had no jurisdiction to consider Reed’s claims attacking his conviction under 

§ 2255 because it was not the sentencing court. See Pack, 218 F.3d at 452. 

Neither was the district court required to transfer the petition to a court of 

appropriate jurisdiction. See § 2241(b). To the extent that Reed is asserting 

that the district court should have transferred his petition in the interest of 

justice, pursuant to 28 U.S.C. § 1631, he has provided nothing to support a 

determination that a transfer instead of a dismissal would have served the 

interests of justice. Finally, to the extent that Reed asserts that he should have 

been given an opportunity to amend the § 2241 petition, the district court did 

not err because any amendment of the petition would have been futile. See 

Marucci Sports, LLC v. NCAA, 751 F.3d 368, 378 (5th Cir. 2014). 

AFFIRMED.

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