     Case: 15-60335      Document: 00513446131         Page: 1    Date Filed: 03/31/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 15-60335                                     FILED
                                  Summary Calendar                             March 31, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
JOSIAH T. WATSON,

                                                 Petitioner-Appellant

v.

B. MOSLEY, Warden of Federal Correction Complex Yazoo City,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CV-135


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
       Josiah T. Watson, federal prisoner # 77444-083, moves for leave to
proceed in forma pauperis (IFP) in his appeal from the dismissal of his 28
U.S.C. § 2241 petition, in which he challenged his guilty plea convictions of
using, carrying, and brandishing a firearm during a crime of violence and
aiding and abetting the same in violation of 18 U.S.C. §§ 2, 924(c). A movant
seeking leave to proceed IFP on appeal must demonstrate that he is a pauper


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60335     Document: 00513446131     Page: 2   Date Filed: 03/31/2016


                                  No. 15-60335

and that he will raise a nonfrivolous issue on appeal.         See FED. R. APP.
P. 24(a)(5); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
      Watson filed a motion under 28 U.S.C. § 2255 in the Eastern District of
Virginia, where he was sentenced, arguing that he was “actually innocent” of
aiding and abetting based on the Supreme Court’s decision in Rosemond v.
United States, 134 S. Ct. 1240 (2014).         The sentencing court dismissed
Watson’s motion as untimely. Watson then filed a petition under § 2241 in the
Southern District of Mississippi, where he is incarcerated, and raised the same
claim of actual innocence under Rosemond.         The district court dismissed
Watson’s § 2241 petition as frivolous.
     In support of his IFP motion, Watson contends that he should be
permitted to proceed under § 2255’s savings clause.              To satisfy the
requirements of the savings clause, a prisoner must establish that the remedy
under § 2255 is “inadequate or ineffective to test the legality of his detention.”
§ 2255(e); see Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.
2001).
      In Rosemond, the Supreme Court held that to aid and abet a firearm
offense in violation of § 924(c), a defendant must have advance knowledge that
a firearm will be used or carried. 134 S. Ct. at 1249. But Rosemond involved
a direct appeal, and the Supreme Court gave no indication that its decision
applied retroactively to cases on collateral review. See Tyler v. Cain, 533 U.S.
656, 663 (2001) (“[A] new rule is not ‘made retroactive to cases on collateral
review’ unless the Supreme Court holds it to be retroactive”).
      In addition, even if Rosemond applied retroactively, Watson has not
shown that he was convicted of a nonexistent offense. The record supports that
Watson had the advance knowledge required under Rosemond to be guilty of
aiding and abetting his § 924(c) offense.



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                                  No. 15-60335

     Watson has not met the burden of showing that the § 2255 remedy is
inadequate or ineffective; therefore, the district court did not err in dismissing
his § 2241 petition. See § 2255(e). Accordingly, Watson’s request for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh
v. Taylor, 117 F.3d 197, 202 n.24; see also 5TH CIR. R. 42.2.




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