Mary K. EDELMANN, Petitioner-Appellant v. Joe KEFFER, Warden, Federal Medical Center Carswell, Respondent-Appellee, 481 F. App'x 966

PER CURIAM: Mary K. Edelmann, federal prisoner # 10316-064, appeals the dismissal of a 28 U.S.C. §. 2241 petition alleging that her conviction for wire fraud in violation of 18 U.S.C. § 1343 is invalid in light of the Supreme Court’s holding in Skilling v. United States, — U.S. -, 130 S.Ct. 2896, 2907, 177 L.Ed.2d 619 (2010), that the honest services fraud statute, 18 U.S.C. § 1346, criminalizes only conduct involving bribery and kickback schemes. The district court determined that Edel-mann’s claims failed to satisfy the “savings clause” of 28 U.S.C. § 2255. The Government has moved for

summary affirmance, a dismissal of the appeal as frivolous, or alternatively, an extension of time to brief the merits. We deny the Government’s 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 she was not charged with or convicted of honest services fraud.

Consequently, we need not decide whether Skilling 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 DENIED. 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.