SMITH v. MOSLEY (2018)

Dedrick Germond Smith, federal prisoner # 18526-001, was convicted in the Northern District of Alabama on one count of murdering, and aiding and abetting the murder of, a DEA agent engaged in the performance of his official duties. Smith appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging that conviction.

We review the dismissal of Smith’s § 2241 petition de novo. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Smith has not shown that Eleventh Circuit precedent foreclosed his claim under Rosemond v. United States, ––– U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), at the time of his trial, direct appeal, or first 28 U.S.C. § 2255 motion. See Garland v. Roy, 615 F.3d 391, 397-98 (5th Cir. 2010); United States v. Thomas, 987 F.2d 697, 702 (11th Cir. 1993); United States v. Hamblin, 911 F.2d 551, 557-58 (11th Cir. 1990). Accordingly, he has not demonstrated that the district court erred in determining that he could not proceed under § 2241 because he did not meet the requirements of the savings clause under § 2255(e). See Reyes-Requena v. United States, 243 F.3d 893, 901, 904 (5th Cir. 2001). Because Smith was convicted in the Northern District of Alabama, the district court in the Southern District of Mississippi lacked jurisdiction to consider his claim under § 2255. See Pack, 218 F.3d at 451-52.

While Smith also argues that his claim should be considered in light of Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), Smith did not present any argument citing Mathis until his notice of appeal. We generally will not consider claims that were not properly presented in the district court. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). In any event, Mathis does not help Smith’s challenge to his conviction because Mathis concerned the use of the categorical approach for a sentence enhancement and did not change the law regarding the elements required to prove a defendant’s guilt or innocence of a crime. See Mathis, 136 S.Ct. at 2247-48. Smith’s claim that his charges under 18 U.S.C. § 1111 and 18 U.S.C. § 1114 were multiplicitous is not considered because it is raised for the first time in his reply brief. See Yohey, 985 F.2d at 225.

AFFIRMED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.