IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60700

Summary Calendar

JOHN ALVIN PAYNE,

Petitioner-Appellant

v.

BRUCE PEARSON, Warden,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 5:10-CV-117

Before JOLLY, GARZA and STEWART, Circuit Judges.

PER CURIAM:

*

John Alvin Payne, federal prisoner # 85849-012, is serving a 50-year

sentence for a conviction under the continuing criminal enterprise statute; four

counts of distribution of cocaine; and three counts of structuring financial

transactions to evade income reporting requirements. Payne filed a 28 U.S.C.

§ 2241 petition arguing that his counsel was ineffective for failing to argue “that

fronting drugs [does] not constitute [a] managerial relationship for a conviction”

under the continuing criminal enterprise statute. The district court determined

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2011

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.

Case: 10-60700 Document: 00511476960 Page: 1 Date Filed: 05/13/2011
No. 10-60700

that Payne could not proceed under § 2241 because his claim did not satisfy the

requirements of the savings clause of 28 U.S.C. § 2255(e). The district court thus

dismissed Payne’s § 2241 petition as frivolous and to the extent it was construed

as a § 2255 motion, the district court dismissed it for lack of jurisdiction.

Section 2255 provides the main vehicle to raise a collateral challenge to a

federal sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). Section

2255 relief is hence the appropriate remedy for “error[s] that occurred at or prior

to sentencing.” Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,1113 (5th Cir.

1990) (internal quotation marks and citation omitted). In contrast, § 2241 is

properly used to raise a challenge to “the manner in which a sentence is

executed.” Tolliver, 211 F.3d at 877. A petition filed under § 2241 that raises

errors “that occurr[ed] at trial or sentencing is properly construed [as arising]

under § 2255.” Id. at 877-78. Payne is challenging alleged errors that happened

at trial. As such, Payne’s claim must be raised in a § 2255 motion. See Cox, 911

F.2d at 1113.

If a prisoner can demonstrate that the § 2255 remedy would be

“’inadequate or ineffective to test the legality of [the prisoner’s] detention,’” he

may be permitted to bring a habeas corpus claim pursuant to § 2241 under the

savings clause. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.

2001) (quoting § 2255).

[T]he savings clause of § 2255 applies to 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.

Id. at 904. Payne has not shown that he is entitled to proceed under § 2241

based on the savings clause of § 2255(e). See Pack v. Yusuff, 218 F.3d 448,

452-53 (5th Cir 2000). The judgment of the district court is AFFIRMED.

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Case: 10-60700 Document: 00511476960 Page: 2 Date Filed: 05/13/2011