John Hillin v. DJ Harmon

Filing

UNPUBLISHED OPINION ORDER FILED. [16-11642 Dismissed as Frivolous] Judge: WED , Judge: EBC , Judge: PRO Mandate pull date is 09/21/2017; denying motion to proceed IFP filed by Appellant Mr. John D. Hillin [8387725-2] [16-11642]

Case: 16-11642

Document: 00514094944

Page: 1

Date Filed: 07/31/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11642
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 31, 2017
Lyle W. Cayce
Clerk

JOHN D. HILLIN,
Petitioner-Appellant
v.

D.J. HARMON, Warden, Federal Correctional Institution Seagoville,
Respondent-Appellee
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CV-1445
Before DAVIS, CLEMENT and OWEN, Circuit Judges.
PER CURIAM: *
John D. Hillin, federal prisoner # 25915-001, seeks leave to appeal in
forma pauperis (IFP) from the dismissal for lack of jurisdiction of a 28
U.S.C. § 2241 petition. In that petition, he challenged his sentences imposed
by the United States District Court for the Northern District of Alabama for
one count of possession of child pornography, three counts of distribution of
child pornography, and seven counts of receipt of child pornography.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-11642

Document: 00514094944

Page: 2

Date Filed: 07/31/2017

No. 16-11642
By moving for leave to proceed IFP, Hillin is challenging the district
court’s certification that his appeal would be frivolous and not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into
an appellant’s good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
Section 2241 is the procedural vehicle for challenging the manner in
which a sentence is being executed, whereas a 28 U.S.C. § 2255 motion is the
vehicle for collaterally attacking a federal conviction and sentence. Padilla v.
United States, 416 F.3d 424, 426 (5th Cir. 2005). Because Hillin is challenging
the length of his Alabama sentences, his claims fall under the purview of
§ 2255 rather than § 2241. See id. A § 2255 motion must be filed in the
sentencing court. § 2255(a); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132
(5th Cir. 1987). Further, Hillin’s sentencing arguments fail to show that he
falls under § 2255’s “savings clause.” See Reyes-Requena v. United States, 243
F.3d 893, 903-04 (5th Cir. 2001).
Hillin has no nonfrivolous argument that the district court erred in
dismissing his § 2241 petition for lack of jurisdiction or by certifying that his
appeal would not be taken in good faith. Accordingly, his motion to proceed
IFP on appeal is DENIED.

Because Hillin’s appeal is frivolous, it is

DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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