     Case: 14-30186      Document: 00512844303         Page: 1    Date Filed: 11/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 14-30186                                 FILED
                                  Summary Calendar                       November 20, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
JEREMIAH HALE,

                                                 Petitioner-Appellant

v.

JOSEPH P. YOUNG,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:13-CV-358


Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jeremiah Hale, federal prisoner # 10062-003, was convicted in the
Southern District of Alabama of conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846. He filed a purported habeas petition
under 28 U.S.C. § 2241 in the Western District of Louisiana, where he is
incarcerated. The district court determined that the claims raised in Hale’s
petition arose under 28 U.S.C. § 2255, and it denied and dismissed the § 2241


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30186

petition with prejudice. Hale filed a timely notice of appeal and requests leave
from this court to proceed in forma pauperis (IFP) on appeal.
      To proceed IFP on appeal, Hale 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). Relying upon United States
v. Meacham, 626 F.2d 503, 507-09 (5th Cir. 1980), Hale contends that he was
convicted of a nonexistent offense because his indictment alleged a conspiracy
to attempt to violate 21 U.S.C. § 841. As Hale attacked the validity of his
conviction, his claim was properly construed as arising under § 2255. See Pack
v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Hale has not, however, established
that his Meacham-based claim meets the requirements for being brought
under § 2241 via the savings clause of § 2255(e). See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001).
      Characterizing his claim as one alleging a jurisdictional defect, Hale
asserts that he may bring the claim at any time. Although Meacham classified
the failure of an indictment to state an offense as a jurisdictional defect, see
626 F.2d at 510, this court has since disavowed that classification, United
States v. Scruggs, 714 F.3d 258, 263 (5th Cir.), cert. denied, 134 S. Ct. 336
(2013). Regardless, even “[j]urisdictional claims are subject to the one-year
limitations period for § 2255 claims.” United States v. Scruggs, 691 F.3d 660,
666 (5th Cir. 2012).
      Hale concedes that he framed his nonexistent-offense claim as a stand-
alone claim in the district court for the first time in his objections to the
magistrate’s report and recommendation on his petition. He argues here that
the district court erred by failing to conduct a de novo review of the claim.
Although issues raised for the first time in objections to a magistrate’s report
are generally not properly before the district court, United States v. Armstrong,



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                                  No. 14-30186

951 F.2d 626, 630 (5th Cir. 1992), a district court may construe the
presentation of an issue in this posture as a motion to amend the underlying
pleading, United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996). The district
court’s failure to specifically address Hale’s claim or the issue whether he
should be allowed to amend his § 2241 petition to raise the claim, along with
the entry of final judgment adopting the magistrate’s report and the denial and
dismissal of Hale’s § 2241 petition may be construed as an implicit denial of
such a motion. See Tollett v. City of Kemah, 285 F.3d 357, 369 n* (5th Cir.
2002). As the claim arose under § 2255 and could not be brought in a § 2241
petition via § 2255’s savings clause, the attempt to amend was futile, and the
district court did not abuse its discretion in declining to consider the claim. See
Martin’s Herend Imports, Inc. v. Diamond & Gem Trading United States of
America Co., 195 F.3d 765, 771 (5th Cir. 1999).
      In light of the foregoing, Hale 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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