     Case: 16-11495      Document: 00514002492         Page: 1    Date Filed: 05/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-11495                                    FILED
                                  Summary Calendar                              May 22, 2017
                                                                               Lyle W. Cayce
ARNULFO DAVILA,
                                                                                    Clerk


                                                 Petitioner-Appellant

v.

RODNEY W. CHANDLER, Warden, Federal Correctional Institution Fort
Worth,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1908


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Arnulfo Davila, federal prisoner # 32490-177, pleaded guilty to
distribution of 50 grams or more of methamphetamine and possession of a
firearm in furtherance of a drug trafficking crime, and he was sentenced to a
total of 300 months of imprisonment. He filed the instant 28 U.S.C. § 2241
petition challenging his conviction and sentence. The district court determined



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11495    Document: 00514002492     Page: 2    Date Filed: 05/22/2017


                                 No. 16-11495

that the claims raised in Davila’s petition arose under 28 U.S.C. § 2255 and
dismissed the § 2241 petition. The district court denied Davila leave to proceed
IFP on appeal and certified that the appeal was not in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Davila now requests leave from
this court to proceed in forma pauperis (IFP) on appeal.
      Davila must demonstrate both financial eligibility and a nonfrivolous
issue for appeal. See FED. R. APP. P. 24(a); Carson v. Polley, 689 F.2d 562, 586
(5th Cir. 1982). Davila has submitted a declaration establishing financial
eligibility for IFP status. See 8 U.S.C. § 1915(a)(1), (a)(2). However, Davila’s
claims amount to a collateral attack on a federal conviction and sentence,
rather than a challenge to the manner in which a sentence is being executed,
and the proper procedural vehicle for asserting these claims is a § 2255 motion.
See Robinson v. United States, 812 F.3d 476, 476-77 (5th Cir. 2016). To proceed
under the savings clause of § 2255, Davila must establish that the remedy
provided under § 2255 is “inadequate or ineffective” to test the legality of his
detention. See § 2255(e); see Reyes-Requena v. United States, 243 F.3d 893, 901
(5th Cir. 2001).
      Davila’s argument that there is an inadequate factual basis for his
conviction is a fact-based challenge that is not based on a retroactively
applicable Supreme Court decision.       See Reyes-Requena, 243 F.3d at 904.
Additionally, his argument that his sentence was erroneously enhanced based
upon Texas controlled substance convictions also does not meet the savings
clause test, as the claim is a sentencing challenge and not a challenge to his
underlying conviction. See Padilla v. United States, 416 F.3d 424, 427 (5th Cir.
2005); Reyes-Requena, 243 F.3d at 904.
      Davila has therefore failed to show that his appeal involves nonfrivolous
issues. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion to



                                       2
    Case: 16-11495   Document: 00514002492   Page: 3   Date Filed: 05/22/2017


                              No. 16-11495

proceed IFP on appeal is DENIED, and his appeal is DISMISSED AS
FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




                                    3
