     Case: 09-40867     Document: 00511182601          Page: 1    Date Filed: 07/22/2010




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

                                                 FILED
                                                                            July 22, 2010
                                     No. 09-40867
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ROBERT RAY SANDLIN,

                                                   Petitioner-Appellant

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent-Appellee


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:08-CV-406


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Robert Ray Sandlin was convicted of importation or transportation of
obscene maters and possession of sexually explicit visual depictions of minors,
and the district court sentenced him to concurrent 57-month terms of
imprisonment and three-year terms of supervised release. Sandlin filed in the
district court an application under 28 U.S.C. § 2241 challenging the special
conditions of his supervised release that constrain his access to the internet.
The district court dismissed Sandlin’s application without prejudice for lack 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40867    Document: 00511182601 Page: 2         Date Filed: 07/22/2010
                                 No. 09-40867

jurisdiction, construing it as an unauthorized second or successive motion under
28 U.S.C. § 2255. Challenging the district court’s denial of leave to appeal in
forma papueris (IFP), Sandlin has filed a motion in this court for leave to
proceed IFP.
      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). Sandlin is unable to make the requisite showing as to the latter
requirement.    As the district court observed, Sandlin’s § 2241 application
challenged the supervised release component of his federal sentence. A § 2241
application that “attacks errors that occur at trial or sentencing is properly
construed under § 2255.” Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000);
see also Christopher v. Miles, 342 F.3d 378, 381-82 (5th Cir. 2003). Sandlin must
meet the requirements of the savings clause of § 2255(e) to raise his claims
under § 2241. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000); see also
Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000); § 2255(e). Sandlin bears the
burden of demonstrating that “the remedy by motion [under § 2255] is
inadequate or ineffective to test the legality of his detention.” § 2255(e); see also
Pack, 218 F.3d at 452. Relief under § 2255 is not “inadequate or ineffective” for
purposes of the savings clause merely because the prisoner has filed a prior
unsuccessful § 2255 motion or is unable to meet the requirements for filing a
second or successive § 2255 motion. Tolliver, 211 F.3d at 878. As Sandlin has
not met the requirements of the savings clause, the district court did not err in
concluding that he could not bring his claims under § 2241. See Pack, 218 F.3d
at 453.
      Sandlin argues that he was denied due process when the district court
construed his § 2241 application as an unauthorized second or successive § 2255
motion without giving him prior notice. Sandlin’s right to due process was not
denied; Sandlin’s pleading was not recharacterized “as a first § 2255 motion” for



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                                No. 09-40867

purposes of the second or successive restrictions of § 2255(h). Castro v. United
States, 540 U.S. 375, 383 (2003).
      Sandlin 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 Sandlin’s appeal as frivolous. See
Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH C IR. R. 42.2.




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