IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10720

Summary Calendar

MARY K. EDELMANN,

Petitioner-Appellant

v.

WARDEN JOE KEFFER,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CV-531

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Mary K. Edelmann, federal prisoner # 10316-064, appeals the dismissal

of a 28 U.S.C. § 2241 petition alleging that her convictions for mail fraud in

violation of 18 U.S.C. § 1341, wire fraud in violation of 18 U.S.C. § 1343, and

money laundering in violation of 18 U.S.C. § 1957 are invalid in light of the

Supreme Court’s holding in Skilling v. United States, 130 S. Ct. 2896, 2907

(2010), that the honest services fraud statute, 18 U.S.C. § 1346, criminalizes only

conduct involving bribery and kickback schemes. The district court determined

United States Court of Appeals

Fifth Circuit

F I L E D

May 11, 2012

Lyle W. Cayce

Clerk

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.

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that Edelmann’s claims failed to satisfy the “savings clause” of 28 U.S.C. § 2255. 

The Government has moved for summary affirmance or, alternatively, an

extension of time to brief the merits. We deny both motions and AFFIRM.

Under § 2241, we review factual findings for clear error and conclusions

of law de novo. Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). We may

affirm the district court’s judgment on any basis supported by the record. Berry

v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).

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); see also Christopher, 342 F.3d at 381-82. The savings clause

is applicable only to a claim that (i) “is based on a retroactively applicable

Supreme Court decision which establishes that the petitioner may have been

convicted of a nonexistent offense” and that (ii) “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). The petitioner bears the “stringent” burden of affirmatively showing

that the § 2255 remedy is inadequate or ineffective and that she is entitled to

avail herself of the “limited exception” found in the savings clause. Christopher,

342 F.3d at 382.

Edelmann has not made this showing. She has failed to show that the

district court erred in holding that Skilling is irrelevant because her offenses did

not involve honest services fraud, but were instead “classic schemes to steal

money.” She has also failed to show that the district court erred in denying her

request for production of documents. As the record refutes Edelmann’s claim

that she was convicted on a theory of honest services fraud, see United States v.

Edelmann, 458 F.3d 791, 797-800, 811-13 (8th Cir. 2006), the denial of her

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motion for production of documents was neither arbitrary nor clearly

unreasonable. United States v. MacCollom, 426 U.S. 317, 324-25 (1976). 

Skilling does not establish that Edelmann was convicted of nonexistent

offenses. Consequently, we need not decide whether it applies retroactively to

cases on collateral review or whether Edelmann’s purported claim was

previously foreclosed by circuit precedent because she cannot meet her burden

regardless. See Christopher, 342 F.3d at 382; Reyes-Requena, 243 F.3d at 904. 

AFFIRMED; MOTIONS FOR SUMMARY AFFIRMANCE AND

EXTENSION OF TIME DENIED.

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