     Case: 14-50484      Document: 00512935860         Page: 1    Date Filed: 02/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 14-50484
                                                                                 FILED
                                                                          February 12, 2015
                                                                            Lyle W. Cayce
STEVEN REYNALDO PEREZ,                                                           Clerk

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-295


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       Steven Reynaldo Perez, Texas prisoner # 1514617 and federal prisoner
# 24606-179, is serving a 60-year sentence for a Texas murder conviction. He
was also sentenced to serve a consecutive two-year federal sentence that was
imposed upon revocation of his term of supervised release.
       In his motion, Perez appeals the district court’s denial of his 28 U.S.C.
§ 2241 petition, asserting that he is challenging the execution of his federal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50484     Document: 00512935860       Page: 2   Date Filed: 02/12/2015


                                   No. 14-50484

sentence because it was ordered to run consecutively to a state sentence based
on an invalid conviction. In addition, Perez maintains that the guidelines
calculations determining his federal revocation sentence were incorrect
because they relied in part on the invalid murder conviction. The district court
determined that Perez’s § 2241 petition was in fact a successive 28 U.S.C.
§ 2254 application or a successive 28 U.S.C. § 2255 motion, that Perez had not
obtained authorization from this court to proceed, and that the district court
lacked jurisdiction. In addition, the district court concluded that Perez had not
shown that his inability to satisfy the successive requirements of § 2255
warranted application of the savings clause of § 2255(e).
      This court is now presented with Perez’s request for a certificate of
appealability (COA) and a motion for leave to proceed in forma pauperis (IFP).
However, Perez has also filed a motion requesting that this court reconsider
the clerk’s order requiring him to seek a COA and to move for IFP status.
Because Perez sought relief under § 2241, he does not need a COA. See Padilla
v. United States, 416 F.3d 424, 425 (5th Cir. 2005). Accordingly, Perez’s motion
to reconsider is granted in part, and the motion for a COA is denied as
unnecessary. However, the motion to reconsider is denied as it relates to
IFP status.
      Perez maintains that he has in fact challenged the administration of his
federal sentence because he is unable to begin serving it in light of the
purportedly invalid state conviction and sentence. Contrary to his assertions,
this allegation is in fact a challenge to the validity of his state conviction, which
should be raised in a § 2254 application. See Felker v. Turpin, 518 U.S. 651,
662 (1996). To the extent Perez is challenging the imposition of consecutive
sentences, this constitutes an error occurring at his federal sentencing that
should be raised under § 2255. See Padilla, 416 F.3d at 425-26.



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                                 No. 14-50484

      Additionally, Perez asserts that he is entitled to proceed under the
savings clause of § 2255(e). He maintains that § 2255 is inadequate to test the
legality of his conviction because he is unable to challenge his state conviction
in § 2255 proceedings and that the district court erred in its analysis of the
claims in his initial § 2254 application. Perez also argues that a failure to
consider his claims of innocence will constitute a miscarriage of justice. He has
not established that a prisoner challenging a state sentence may file a § 2241
petition by way of the savings clause of § 2255. Cf. Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001) (indicating that a prisoner may challenge a
“federally imposed sentence”). Moreover, even if Perez could proceed under the
savings clause, he has not shown that his challenges to his state conviction are
based on retroactively applicable Supreme Court decisions establishing that
he was convicted of a nonexistent offense. See Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). Perez’s argument that the actual innocence
and miscarriage of justice standards provide an exception to the § 2255 savings
clause requirement fails, as there is no authority extending the actual
innocence gateway to permit § 2241 proceedings. See House v. Bell, 547 U.S.
518, 521-22, 536-40, 554 (2006); Schlup v. Delo, 513 U.S. 298, 315 (1995). Perez
has not shown that the district court erred in its consideration of his § 2241
petition. See Christopher v. Miles, 342 F.3d 378, 381 (5th Cir. 2003). His
motion for leave to proceed IFP is denied.
      AFFIRMED; IFP DENIED; MOTION FOR RECONSIDERATION
GRANTED IN PART AND DENIED IN PART; MOTION FOR A COA
DENIED AS UNNECESSARY.




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