     Case: 14-50676      Document: 00513000074         Page: 1    Date Filed: 04/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50676                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                           April 9, 2015

KIRBY LOREN AMLEE,                                                       Lyle W. Cayce
                                                                              Clerk
                                                 Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 4:14-CV-42


Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Kirby Loren Amlee, federal prisoner # 23419-057, filed a purported 28
U.S.C. § 2241 petition challenging his guilty plea convictions and 63-month
sentence for theft of governmental property, transportation of ammunition by
a prohibited person, and transportation of stolen property through interstate
commerce. The district court determined that the claims raised in Amlee’s
petition arose under 28 U.S.C. § 2255 and that Amlee had not established that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50676

he was entitled to proceed under the savings clause of § 2255(e), which allows
a federal prisoner to challenge his conviction under § 2241 if the remedies
provided under § 2255 are “inadequate or ineffective to test the legality of his
detention.” Accordingly, the district court dismissed the § 2241 petition for
lack of jurisdiction, and Amlee now requests leave from this court to proceed
in forma pauperis (IFP) on appeal.          He also requests a certificate of
appealability (COA), but no COA is required to proceed on appeal in a § 2241
proceeding, see Padilla v. United States, 416 F.3d 424, 425 (5th Cir. 2005), and
the COA motion is therefore DENIED as unnecessary.
      To proceed IFP on appeal, Amlee must show that he is a pauper 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). A petitioner seeking to
establish that his § 2255 remedy was inadequate or ineffective must make a
claim (i) “based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent
offense” that (ii) “was foreclosed by circuit law at the time when the claim
should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.”
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). We review
a district court’s dismissal of a § 2241 petition de novo. Kinder v. Purdy, 222
F.3d 209, 212 (5th Cir. 2000).
      Amlee concedes that he cannot meet the standard set forth in Reyes-
Requena, but he asserts that he is actually innocent of the sentencing
enhancements that were applied in his case and that the refusal to allow him
to bring his claims under § 2241 would thus result in a miscarriage of justice.
Unlike a claim that one has been convicted of a nonexistent offense or that one
is actually innocent of the crime of conviction, a claim that one is actually




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                                  No. 14-50676

innocent of a sentencing enhancement is not one that may be brought under
§ 2255’s savings clause. See Kinder, 222 F.3d at 213-14.
      In light of the foregoing, Amlee has identified no nonfrivolous issue for
appeal. His IFP motion is DENIED, and the appeal is DISMISSED. See
Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); Carson, 689 F.2d at
586; 5TH CIR. R. 42.2.




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