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United States Court of Appeals, Fifth Circuit.

Jimmy Lee SHARBUTT, Petitioner-Appellant v. N. VASQUEZ, Warden, Respondent-Appellee

No. 17-41106

Decided: January 30, 2019

Before BARKSDALE, ELROD, and HO, Circuit Judges, Jimmy Lee Sharbutt, Pro Se Bradley Elliot Visosky, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Plano, TX, for Respondent-Appellee

Jimmy Lee Sharbutt, federal prisoner # 09112-062 and proceeding pro se, contests the dismissal of his 28 U.S.C. § 2241 petition. Sharbutt was convicted of being a felon in possession of a firearm and ammunition. The district court concluded he was an armed career criminal and sentenced him, inter alia, to 262 months’ imprisonment. See 18 U.S.C. §§ 922(g)(1), 924(e). Subsequently, his 28 U.S.C. § 2255 motion was denied.

For his § 2241 motion, Sharbutt contends the court erred in concluding he failed to meet the requirements of the savings clause of § 2255(e), which would permit him to proceed under § 2241 (generally reserved for challenges to the manner in which a sentence is being executed). According to Sharbutt, Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), prohibits the application of the armed-career-criminal enhancement for convictions of offenses defined more broadly than the generic offense listed in § 924(e)(2)(B)(ii), such as his prior conviction of Oklahoma second-degree burglary. See United States v. Hamilton, 889 F.3d 688, 699 (10th Cir. 2018).

The district court’s determination of law in dismissing a § 2241 petition is reviewed de novo. Garland v. Roy, 615 F.3d 391, 396 (5th Cir. 2010). To proceed under § 2241, Sharbutt has to meet the requirements of the savings clause in § 2255(e) by showing his claim was “based on a retroactively applicable Supreme Court decision which establishes that ․ petitioner may have been convicted of a nonexistent offense” and “foreclosed by circuit law at the time when the claim should have been raised in ․ petitioner’s trial, appeal, or first § 2255 motion”. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

Because Mathis implicates the validity of a sentence enhancement, Mathis does not establish Sharbutt was convicted of a nonexistent offense. See Padilla v. United States, 416 F.3d 424, 425–27 (5th Cir. 2005) (pre-Mathis action in which petitioner “[did] not attack his conviction and his claims challenge only the validity of his sentence”). Moreover, Mathis does not apply retroactively. See Mathis, 136 S.Ct. at 2257; see also In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (denying authorization to file a successive § 2255 motion because petitioner “failed to [show] Mathis ․ set forth [a] new rule[ ] of constitutional law that [has] been made retroactive to cases on collateral review” (citation omitted) ).




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.

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