     Case: 11-50490     Document: 00511718749         Page: 1     Date Filed: 01/09/2012




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

                                                                            FILED
                                                                          January 9, 2012
                                     No. 11-50490
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN M. WYATT,

                                                  Petitioner-Appellant

v.

M. TRAVIS BRAGG, Warden,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CV-187


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        John M. Wyatt, federal prisoner # 04900-051, has filed an application for
leave to proceed in forma pauperis (IFP) on appeal, following the dismissal for
lack of jurisdiction of his federal habeas petition challenging the validity of his
conviction for possession with intent to distribute marijuana. A movant for IFP
on appeal must show that he is a pauper and that he will present a nonfrivolous
appellate issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50490

      Before the district court, Wyatt argued that his criminal conviction was
invalid because the statute of conviction, 21 U.S.C. § 841, did not constitute an
“Act of Congress.” The district court construed Wyatt’s“writ of a habeas corpus
ad subjudiciendum” as a 28 U.S.C. § 2241 petition and concluded that it was
improperly submitted because Wyatt’s challenge to the validity of his conviction
should be presented under 28 U.S.C. § 2255. Because Wyatt was challenging
matters arising prior to the imposition of his federal sentence, his claims arose
under § 2255. See Padilla v. United States, 416 F.3d 424, 425-26 (5th Cir. 2005).
A § 2241 petition raising such a claim may be considered only where the
petitioner establishes that § 2255 is “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). To show that § 2255 was rendered inadequate or ineffective in
his case, Wyatt must show that his claim (1) “is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense” and (2) “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. Wyatt’s
challenge to the statute of conviction does not meet this standard.
      Wyatt’s assertion that the district court denied his due process rights by
failing to inform him whether it derived its powers from Article I or Article III
of the Constitution does not entitle him to relief. See, e.g., United States v.
Raddatz, 447 U.S. 667, 676-77 (1980). He is incorrect in his assertion that the
district court could not convert his generic writ of habeas corpus to a statutory
writ or to a § 2255 motion. See 28 U.S.C. § 2243; Pack v. Yusuff, 218 F.3d 448,
452 (5th Cir. 2000). The district court was not obligated to obtain an answer
from the respondent before concluding that Wyatt’s claims were meritless. See
§ 2243.
      Because Wyatt has not met the requirements for proceeding under the
savings clause of § 2255, and because he has not established that the district

                                         2
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                                  No. 11-50490

court committed a procedural error in addressing his case, he has not
established that he will raise a nonfrivolous appellate issue. See Carson, 689
F.2d at 586. Accordingly we DENY the motion to proceed IFP on appeal and we
DISMISS Wyatt’s appeal as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202
n.24 (5th Cir. 1997); 5TH CIR. R. 42.2. All other outstanding motions are likewise
DENIED.




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