     Case: 11-10854     Document: 00511839619         Page: 1     Date Filed: 04/30/2012




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

                                                                            FILED
                                                                           April 30, 2012
                                     No. 11-10854
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONALD PAXSON,

                                                  Petitioner-Appellant

v.

WARDEN REBECCA TAMEZ,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-482


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Donald Paxson, federal prisoner # 82915-180, appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition challenging his concurrent 70-month
prison sentences for possession of child pornography and receipt of child
pornography. Paxson also moves for the appointment of counsel.
        Paxson argues that the district court erred in dismissing his petition
because (1) he would otherwise be denied the opportunity to “test the legality of
his conviction” and to prove that he was actually innocent, and (2) his petition

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10854    Document: 00511839619      Page: 2   Date Filed: 04/30/2012

                                  No. 11-10854

falls within the savings clause of 28 U.S.C. 2255(e) based on the holding in Pack
v. Yusuff, 218 F.3d 448 (5th Cir. 2000). Paxson also asserts that the district
court should have applied 28 U.S.C. § 1651, the All Writs Act, to transfer his
petition to the appellate court with the appropriate jurisdiction.
      We review a district court’s dismissal of a § 2241 petition de novo. Kinder
v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000. “A section 2241 petition that seeks
to challenge the validity of a federal sentence must either be dismissed or
construed as a section 2255 motion.” Pack, 218 F.3d at 452. A § 2241 petition
that attacks custody resulting from a federally imposed sentence may be
entertained under the savings clause of § 2255 if the petitioner establishes that
the remedy provided under § 2255 is “inadequate or ineffective” to test the
legality of his detention. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
      To demonstrate that the remedy provided under § 2255 is inadequate or
ineffective, Paxson must establish that his claim is “(i) . . . based on a
retroactively applicable Supreme Court decision which establishes that
[he] . . . may have been convicted of a nonexistent offense and (ii) that was
foreclosed by circuit law at the time when the claim should have been raised in
[his] . . . trial, appeal, or first § 2255 motion.” Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001). The first “factor requires that a retroactively
applicable Supreme Court decision establish that the petitioner is actually
innocent,” meaning that he “may have been imprisoned for conduct that was not
prohibited by law.” Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001)
(internal quotation marks and citation omitted). Paxson’s assertions that his
indictment, plea agreement, and guilty plea were invalid do not meet this
standard because the claims do not rely on a retroactively applicable Supreme
Court decision showing that he was convicted of a nonexistent offense. See
Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005).
      Paxson’s assertion that the district court should have transferred his
petition pursuant to § 1651 is equally unavailing. Construing Paxson’s petition

                                        2
   Case: 11-10854   Document: 00511839619     Page: 3   Date Filed: 04/30/2012

                                 No. 11-10854

as a § 2255 motion and transferring it to a court with proper jurisdiction rather
than dismissing the petition would not have served the best interests of justice
given that Paxson had previously filed § 2255 motions and would have been
required to seek permission before filing a successive motion. See 28 U.S.C.
§ 1631. Accordingly, the district court’s judgment is AFFIRMED. Furthermore,
because Paxson has not “demonstrated that the interests of justice would be
served by the appointment of counsel,” his motion is DENIED. United States v.
Tubwell, 37 F.3d 175, 179 (5th Cir. 1994).




                                       3
