Coy Owens v. Keith Roy

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Coy Owens v. Keith Roy Doc. 0 Case: 09-40984 Document: 00511219410 Page: 1 Date Filed: 08/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40984 S u m m a r y Calendar August 30, 2010 Lyle W. Cayce Clerk C O Y LYNN OWENS, P e titio n e r-A p p e lla n t, veersus K E I T H ROY, Warden, Texarkana FCI, R e s p o n d e n t -A p p e lle e . A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:08-CV-227 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* C o y Owens, federal prisoner # 04702-078, seeks leave to proceed in forma p a u p e r is ("IFP") on appeal from the dismissal of his 28 U.S.C. 2241 petition, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-40984 Document: 00511219410 Page: 2 No. 09-40984 Date Filed: 08/30/2010 w h ic h challenged his convictions for various mail fraud offenses and arson. He a r g u e d that his speedy trial rights were violated and that he was actually innoc e n t of the offense of conviction. Because the district court determined that O w e n s 's claims were challenges to his conviction under 28 U.S.C. 2255, it dism is s e d the petition for lack of jurisdiction as an unauthorized successive 2255 m o tio n . 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). Owens argues that his claims fall within the savings clause of 28 U .S .C . 2255 because Zedner v. United States, 547 U.S. 489 (2006), establishes h is innocence and could not have been previously raised. A 2241 petition att a c k in g custody resulting from a federally-imposed sentence may be considered o n ly where the petitioner establishes that 2255 is "inadequate or ineffective to t e s t the legality of his detention." 2255(e); Reyes-Requena v. United States, 243 F .3 d 893, 901 (5th Cir. 2001). To show that 2255 was rendered inadequate or in e ffe c t iv e , Owens must show that his claim (1) "is based on a retroactively app lic a b le Supreme Court decision which establishes that the petitioner may have b e e n convicted of a nonexistent offense" and (2) "was foreclosed by circuit law at t h e time when the claim should have been raised in the petitioner's trial, appeal o r first 2255 motion." Reyes-Requena, 243 F.3d at 904. Z e d n e r , 547 U.S. at 500-09, dealt with issues relating to the Speedy Trial A c t . Because Zedner does not establish that Owens was convicted of a nonexist e n t offense, we need not determine whether Zedner is retroactive or whether O w e n s 's claim was foreclosed when he filed his prior 2255 motion or direct app e a l. O w e n s also argues that the district court lacked jurisdiction over his 2241 petition by virtue of his transfer to Minnesota. The only district that may c o n s id e r a habeas corpus challenge pursuant to 2241 is the district in which t h e prisoner is confined at the time he filed his 2241 petition. Rumsfeld v. 2 Case: 09-40984 Document: 00511219410 Page: 3 No. 09-40984 Date Filed: 08/30/2010 P a d illa , 542 U.S. 426, 442-43 (2004); Lee v. Wetzel, 244 F.3d 370, 375 n.5 (5th C ir . 2001). Because Owens was confined in the Eastern District of Texas at the t im e he filed the present 2241 petition, the district court did not err by conside r in g the petition. See Padilla, 542 U.S. at 442-43. Owens has not established that he will raise a nonfrivolous appellate iss u e . See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to proceed I F P on appeal, and we DISMISS Owens's appeal as frivolous. See Baugh v. Taylo r , 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2. Owens's motion for t h e appointment of counsel is DENIED. Owens is WARNED that future frivolo u s filings may result in the imposition of sanctions. 3

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