Robert Sandlin v. Eric Holder, Jr.

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Robert Sandlin v. Eric Holder, Jr.

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Case: 09-40867

Document: 00511182601

Page: 1

Date Filed: 07/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40867 S u m m a r y Calendar July 22, 2010 Lyle W. Cayce Clerk

R O B E R T RAY SANDLIN, P e titio n e r-A p p e lla n t v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R e s p o n d e n t -A p p e lle e

A p p e a ls from the United States District Court fo r the Eastern District of Texas U S D C No. 4:08-CV-406

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* R o b e r t Ray Sandlin was convicted of importation or transportation of o b s c e n e maters and possession of sexually explicit visual depictions of minors, a n d the district court sentenced him to concurrent 57-month terms of im p r is o n m e n t and three-year terms of supervised release. Sandlin filed in the d is t r ic t court an application under 28 U.S.C. § 2241 challenging the special c o n d itio n s of his supervised release that constrain his access to the internet. The district court dismissed Sandlin's application without prejudice for lack of
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-40867

Document: 00511182601 Page: 2 No. 09-40867

Date Filed: 07/22/2010

ju r is d ic t io n , construing it as an unauthorized second or successive motion under 2 8 U.S.C. § 2255. Challenging the district court's denial of leave to appeal in fo r m a papueris (IFP), Sandlin has filed a motion in this court for leave to p r o c e e d IFP. A movant for IFP on appeal must show that he is a pauper and that he will p r e s e n t a nonfrivolous appellate issue. Carson v. Polley, 689 F.2d 562, 586 (5th C ir . 1982). Sandlin is unable to make the requisite showing as to the latter r e q u ir e m en t. As the district court observed, Sandlin's § 2241 application

c h a lle n g e d the supervised release component of his federal sentence. A § 2241 a p p lic a t io n that "attacks errors that occur at trial or sentencing is properly c o n s t r u e d under § 2255." Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000); s e e also Christopher v. Miles, 342 F.3d 378, 381-82 (5th Cir. 2003). Sandlin must m e e t the requirements of the savings clause of § 2255(e) to raise his claims u n d e r § 2241. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000); see also P a c k v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000); § 2255(e). Sandlin bears the b u r d e n of demonstrating that "the remedy by motion [under § 2255] is in a d e q u a t e or ineffective to test the legality of his detention." § 2255(e); see also P a c k , 218 F.3d at 452. Relief under § 2255 is not "inadequate or ineffective" for p u r p o s e s of the savings clause merely because the prisoner has filed a prior u n s u c c e s s fu l § 2255 motion or is unable to meet the requirements for filing a s e c o n d or successive § 2255 motion. Tolliver, 211 F.3d at 878. As Sandlin has n o t met the requirements of the savings clause, the district court did not err in c o n c lu d in g that he could not bring his claims under § 2241. See Pack, 218 F.3d a t 453. S a n d lin argues that he was denied due process when the district court c o n s t r u e d his § 2241 application as an unauthorized second or successive § 2255 m o t io n without giving him prior notice. Sandlin's right to due process was not d e n ie d ; Sandlin's pleading was not recharacterized "as a first § 2255 motion" for

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Case: 09-40867

Document: 00511182601 Page: 3 No. 09-40867

Date Filed: 07/22/2010

p u r p o s e s of the second or successive restrictions of § 2255(h). Castro v. United S ta te s , 540 U.S. 375, 383 (2003). S a n d lin has not established that he will raise a nonfrivolous appellate is s u e . See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to p r o c e e d IFP on appeal and we DISMISS Sandlin's appeal as frivolous. See B a u g h v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.

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