     Case: 18-50410      Document: 00515121417         Page: 1    Date Filed: 09/17/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                    No. 18-50410                         FILED
                                  Summary Calendar               September 17, 2019
                                                                    Lyle W. Cayce
                                                                         Clerk
MAURO T. PADILLA, III,

                                                 Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-315


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Mauro T. Padilla, III, federal prisoner # 52315-280, has applied for leave
to proceed in forma pauperis (IFP) in this appeal from the dismissal of his
petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging the
sentence imposed upon his conviction of making false statements to a federally
insured institution.      We have construed Padilla’s application for leave to
proceed IFP as a challenge to the district court’s determination that his appeal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 18-50410

has not been brought in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry “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 citations
omitted). For the following reasons, Padilla has failed to raise non-frivolous
legal points arguable on their merits.
      A motion under 28 U.S.C. § 2255 is the primary means of collaterally
attacking a federal sentence, and relief is granted for errors that occurred at
trial or sentencing. Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000).
Section 2241, on the other hand, is used to challenge “the manner in which a
sentence is executed.” Id. at 877. A petition, like Padilla’s, that is filed under
§ 2241 and raises errors that occurred at or prior to sentencing should be
construed as a § 2255 motion. Padilla v. United States, 416 F.3d 424, 425-26
(5th Cir. 2005). Because Padilla has previously filed a motion under § 2255,
his motion would be dismissed as successive as construed in this way.
      However, under the Savings Clause, a § 2241 petition that attacks
custody resulting from a federally imposed sentence may be entertained if the
petitioner shows that the remedy provided under § 2255 is inadequate or
ineffective to test the legality of his detention. Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001); see also 28 U.S.C. § 2255(e). The petitioner has the
burden of affirmatively showing that the § 2255 remedy is inadequate or
ineffective. See Wesson v. United States Penitentiary Beaumont, TX, 305 F.3d
343, 347 (5th Cir. 2002).     He must show that his claims are “based on
a retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and were
“foreclosed by circuit law at the time when the claim[s] should have been raised




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                                 No. 18-50410

in [his] trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001); see also Jeffers, 253 F.3d at 830-31.
      Padilla contends that his sentence was illegal in light of Nelson v.
Colorado, 137 S. Ct. 1249 (2017). Under Nelson, he asserts, acquitted conduct
or conduct in which there has been no final conviction may not be considered
as relevant conduct in determining a sentence. He asserts that Nelson has
been or should be made retroactive to cases on collateral review. He does not
otherwise discuss the question whether the district court erred in determining
that he could not proceed under the Savings Clause of § 2255.
      Padilla’s Nelson claim relates to the legality of his sentence. See Padilla,
416 F.3d at 426-27 (holding that a federal prisoner was not entitled to proceed
under the Savings Clause because he challenged only the validity of his
sentence).   He has not shown that the claim is “based on a retroactively
applicable Supreme Court decision,” which establishes that he “may have been
convicted of a nonexistent offense.” Reyes-Requena, 243 F.3d at 904. Thus, he
has not shown that he should be permitted to proceed in a § 2241 proceeding
under the Savings Clause of § 2255. See id.
      The request for leave to proceed IFP on appeal is DENIED and the
appeal is DISMISSED. See Baugh, 117 F.3d at 202 n.24; see also 5TH CIR.
R. 42.2.




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