     Case: 11-60757     Document: 00511890483         Page: 1     Date Filed: 06/18/2012




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

                                                                            FILED
                                                                           June 18, 2012
                                     No. 11-60757
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOSE MORA,

                                                  Petitioner-Appellant

v.

WARDEN, FEDERAL CORRECTIONAL COMPLEX, YAZOO CITY MEDIUM,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:11-CV-148


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Jose Mora, federal prisoner # 81024-020, moves this court for leave to
proceed in forma pauperis (IFP) on appeal following the dismissal without
prejudice of his 28 U.S.C. § 2241 petition. 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).
        Mora claims that the district court should have looked to this court’s
decisions in McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979), or Cox v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60757   Document: 00511890483      Page: 2   Date Filed: 06/18/2012

                                  No. 11-60757

Warden, 911 F.2d 1111, 1113-14 (5th Cir. 1990), when ruling on his petition. At
issue in those cases, however, was whether the petitioner could proceed under
§ 2241 because the remedy provided for under 28 U.S.C. § 2255 was inadequate
or ineffective to test the legality of his detention. McGhee, 604 F.2d at 10; Cox,
911 F.2d at 1113.
      In this case, the district court dismissed Mora’s § 2241 petition without
prejudice because his petition related to his dietary and/or medical needs, and
a determination in his favor would not result in his accelerated release. The
district court therefore correctly concluded that his claim was not cognizable
under § 2241. See Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997).
Moreover, because his claim was not cognizable under § 2241, the district court
did not abuse its discretion in implicitly denying his motion for appointment of
counsel. See Tollett v. City of Kemah, 285 F.3d 357, 369 n.* (5th Cir. 2002);
United States v. Tubwell, 37 F.3d 175, 179 (5th Cir. 1994).
      Mora 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 his appeal as frivolous. See Baugh v. Taylor, 117
F.3d 197, 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.




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