     Case: 17-40232      Document: 00514177965         Page: 1    Date Filed: 09/29/2017




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

                                    No. 17-40232                              FILED
                                  Summary Calendar                   September 29, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
VAUDA VIRGLE SHIPP, JR.,

                                                 Petitioner-Appellant

v.

RACHEL CHAPA, Warden; FRANK LARA, Warden; UNITED STATES OF
AMERICA,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:16-CV-71


Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Vauda Virgle Shipp, Jr., federal prisoner # 09724-062, seeks leave to
appeal in forma pauperis (IFP) from the district court’s denial of his 28 U.S.C.
§ 2241 petition. The district court determined that Shipp could not pursue
relief under § 2241 because he failed to show that relief under 28 U.S.C. § 2255
would be inadequate or ineffective, as is required by the savings clause of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40232

§ 2255. A movant seeking leave to proceed IFP on appeal in a civil case must
show that he is a pauper and that the appeal raises nonfrivolous issues. See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
      We review the dismissal of a § 2241 petition de novo. Kinder v. Purdy,
222 F.3d 209, 212 (5th Cir. 2000). A federal prisoner may attack the validity
of his conviction in a § 2241 petition if he can meet the requirements of the
savings clause of § 2255. Id. The prisoner must make the showing that the
remedy under § 2255 would be “inadequate or ineffective to test the legality of
his detention.” § 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901
(5th Cir. 2001). A petitioner’s inability to meet the procedural requirements of
§ 2255 is insufficient to make the required showing. Pack v. Yusuff, 218 F.3d
451, 452-53 (5th Cir. 2000). Rather, a prisoner who wishes to proceed under
the savings clause must establish that his claim “is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense” and that the claim “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, 243
F.3d at 904.
      Shipp argues that he was sentenced under a nonexistent statute because
Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States,
136 S. Ct. 1257, 1265 (2016), invalidated the residual clause of 18 U.S.C.
§ 924(e). As Johnson and Welch address sentencing issues and have no effect
on whether the facts of Shipp’s case would support his conviction for the
substantive offense, they are not retroactively applicable Supreme Court
decisions indicating that he was convicted of a nonexistent offense. See Padilla
v. United States, 416 F.3d 424, 426-27 (5th Cir. 2005) (holding that a
petitioner’s claim that his terms of imprisonment exceeded the statutory



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                                 No. 17-40232

maximum for the charged offense did not fulfill the first prong of Reyes-
Requena); see also Kinder, 222 F.3d at 213-14 (holding that a claim that the
§ 2241 petitioner was actually innocent of being a career offender under
U.S.S.G. § 4B1.1 was not a claim that the petitioner was actually innocent of
the crime of conviction); see also In re Bradford, 660 F.3d 226, 230 (5th Cir.
2011) (same); Preston v. Ask-Carlson, 583 F. App’x 462, 463 (5th Cir. 2014)
(“[C]laims relating to sentencing determinations do not fall within the savings
clause and are not cognizable under § 2241, even where the petitioner asserts
a ‘miscarriage of justice’ or actual innocence relating to the alleged sentencing
errors.”). Additionally, Shipp’s remaining claims regarding the Magistrate
Judge’s alleged bias and authority are not based on a retroactively applicable
Supreme Court decision that would have established he was convicted of a
nonexistent offense. See Reyes-Requena, 243 F.3d at 904. Because Shipp has
failed to demonstrate that he will raise a nonfrivolous issue on appeal, see
Carson, 689 F.2d at 586, his IFP motion is DENIED, and his appeal is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2.      Shipp’s motions for bail pending appeal and
appointment of counsel are likewise DENIED.




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