IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50678

In re: LEYUMBA WEBB,

Movant

Motion for an order authorizing

the United States District Court for the

Western District of Texas, Austin to consider

a successive 28 U.S.C. § 2255 motion

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Leyumba Webb, federal prisoner # 28913-180, seeks authorization to file 

a successive 28 U.S.C. § 2255 motion challenging the 210-month sentence 

imposed following his conviction for possession of crack cocaine with intent to 

distribute. In a successive § 2255 motion, Webb seeks to raise a claim that the 

determination that he was a career offender under U.S.S.G. § 4B1.1 was 

erroneous in light of Descamps v. United States, 133 S. Ct. 2276 (2013). In the 

alternative to being granted authorization to file a successive § 2255 motion, 

Webb seeks a writ of audita querela.

This court may authorize the filing of a second or successive § 2255 

motion only if the movant makes a prima facie showing that his claims rely on 

* 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 14, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-50678 Document: 00512902622 Page: 1 Date Filed: 01/14/2015
No. 14-50678

either (1) “newly discovered evidence that, if proven and viewed in light of the 

evidence as a whole, would be sufficient to establish by clear and convincing 

evidence that no reasonable factfinder would have found the movant guilty of 

the offense”1 or (2) “a new rule of constitutional law, made retroactive to cases 

on collateral review by the Supreme Court, that was previously unavailable.” 

§ 2255(h); see also 28 U.S.C. § 2244(b)(3)(C). As In re Jackson makes clear,

“[w]hen a movant relies on a new rule of constitutional law to make the 

showing required under § 2255(h)(2), he ‘must point to a Supreme Court 

decision that either expressly declares the collateral availability of the rule 

(such as by holding or stating that the particular rule upon which the 

petitioner seeks to rely is retroactively available on collateral review) or applies 

the rule in a collateral proceeding.’” No. 14-30805, ___ F.3d ___, 2015 WL 

127370, at *1 (5th Cir. Jan. 8, 2015) (per curiam) (quoting In re Smith, 142 

F.3d 832, 835 (5th Cir. 1998), and citing In re Tatum, 233 F.3d 857, 859 (5th 

Cir. 2000) (per curiam)). Descamps has not been made retroactive to cases on 

collateral review by the Supreme Court and “does not provide a basis for 

[Webb’s] successive § 2255 motion.” In re Jackson, 2015 WL 127370, at *3.

Furthermore, a prisoner may not seek a writ of audita querela if he “may 

seek redress under § 2255.” United States v. Banda, 1 F.3d 354, 356 (5th Cir. 

1993), abrogated in part on other grounds by Padilla v. Kentucky, 559 U.S. 356 

(2010). Although Webb cannot meet the requirements for bringing a successive 

§ 2255 motion, this does not render the § 2255 remedy unavailable. Tolliver v. 

Dobre, 211 F.3d 876, 878 (5th Cir. 2000) (per curiam).

Accordingly, IT IS ORDERED that Webb’s motion for authorization to 

file a successive § 2255 motion is DENIED.

1 Webb does not identify any newly discovered evidence on which his claim is based, 

and, even if he did, this would not be sufficient as Webb is challenging only his sentence. See 

In re Webster, 605 F.3d 256, 257–58 (5th Cir. 2010). 

2

 

 Case: 14-50678 Document: 00512902622 Page: 2 Date Filed: 01/14/2015