Opinion
No. 08-41249 Summary Calendar.
November 18, 2010.
Lawrence D. Kenemore, Jr., Leavenworth, KS, pro se.
Michael Wayne Lockhart, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Beaumont, TX, for Respondents-Appellee.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 5:08-CV-104.
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
Lawrence Kenemore, Jr., federal prisoner # 26175-077, was convicted by a jury of "conspiracy to commit mail fraud, conspiracy to embezzle funds from employee benefit plans, conspiracy to launder money, mail fraud, embezzlement from employee benefit plans, money laundering, and making a false statement to the United States Department of Labor." See United States v. Kenemore, No. 96-11029, 1997 WL 574971, at *1 (5th Cir. Aug.28, 1997) (unpublished). Kenemore filed a petition under 28 U.S.C. § 2241, arguing that his money-laundering conviction should be invalidated in light of United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). The district court dismissed the petition because Kenemore did not meet the requirements for proceeding under the savings clause of 28 U.S.C. § 2255 as set forth in Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). For the denial of habeas corpus relief, the district court's findings of facts are reviewed for clear error, issues of law de novo. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
The district court limited the application of Santos to cases of illegal gambling and did not have the benefit of Garland v. Roy, 615 F.3d 391 (5th Cir. 2010), when it reached that conclusion. Under Garland, id. at 402-04, the district court's narrow interpretation of Santos, limiting it to illegal gambling, is not correct. Accordingly, the judgment of dismissal of Kenemore's § 2241 petition is VACATED. Kenemore's motion for remand is GRANTED, and the matter is REMANDED to determine whether, consistent with Garland, his claim falls within the savings clause of § 2255.
Kenemore's motion to have the court take notice of two letters pursuant to Federal Rule of Appellate Procedure 28(j) is GRANTED. His motion for release pending appeal is DENIED. See Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974).