     Case: 16-50102      Document: 00514003660         Page: 1    Date Filed: 05/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-50102                                  FILED
                                  Summary Calendar                            May 23, 2017
                                                                             Lyle W. Cayce
RODNEY JAMES PALMER,
                                                                                  Clerk


                                                 Plaintiff-Appellant

v.

JEFFERSON B. SESSIONS, III; UNITED STATES ATTORNEY GENERAL;
UNITED   STATES    ATTORNEY'S      OFFICE;  UNITED   STATES
DEPARTMENT OF JUSTICE; UNITED STATES OF AMERICA; FEDERAL
BUREAU OF INVESTIGATION,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CV-362


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Rodney James Palmer, federal prisoner # 19339-081, appeals the district
court’s dismissal of his complaint as frivolous and for failure to state a claim
upon which relief may be granted. Palmer alleged that the defendants violated
his federal constitutional rights by convicting him of a crime in a federal court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50102

that has no jurisdiction over him. He contends that he is a sovereign and a
citizen of the State of Utah, and not a person or a citizen of the United States.
      When, as here, a district court dismisses a complaint as frivolous and for
failure to state a claim under 28 U.S.C. § 1915 and § 1915A, our review is de
novo, and we apply the standard of review applicable to dismissals made
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009). A plaintiff fails to state a claim upon
which relief can be granted if “taking the plaintiff’s allegations as true, it
appears that no relief could be granted based on the plaintiff’s alleged facts.”
Id. (internal quotation marks and citation omitted). A complaint is “frivolous
if it lacks any arguable basis in law or fact.” Id. (internal quotation marks and
citation omitted).
      Palmer contends that the district court erred in construing his complaint
under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). The label that Palmer attached to
his complaint is not determinative. See Hernandez v. Thaler, 630 F.3d 420,
426–27 (5th Cir. 2011); Solsona v Warden, F.C.I., 821 F.2d 1129, 1132 n.1 (5th
Cir. 1987). Because Palmer is a federal prisoner alleging a violation of his
constitutional rights who is seeking a declaratory judgment and monetary
damages, the district court did not err in construing his complaint as a Bivens
action. See Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). Further,
the district court correctly concluded that Palmer’s claims were barred by Heck
v. Humphrey, 512 U.S. 477, 486–87 (1994). He challenged the validity of his
federal criminal conviction, and he has not shown that his “conviction or
sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.”



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                                  No. 16-50102

Heck, 512 U.S. at 486-87; accord Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir.
1994).
      Next, Palmer challenges the district court’s conclusion regarding his
constitutional right to redress of grievances. “[T]he right of access to the courts
is an aspect of the First Amendment right to petition the Government for
redress of grievances.” Driggers v. Cruz, 740 F.3d 333, 336 (5th Cir. 2014).
However, Palmer has shown no actual prejudice due to the policies or actions
of the defendants with respect to his ability to file a nonfrivolous legal claim.
See Christopher v. Harbury, 536 U.S. 403, 415 (2002).
      Additionally, Palmer asserts that he is not subject to federal law. The
magistrate judge determined that this claim was without an arguable legal or
factual basis and should be dismissed as frivolous, and the district court
adopted this determination. We agree. See United States v. Weast, 811 F.3d
743, 746 & n.5 (5th Cir.), cert. denied, 137 S. Ct. 126 (2016).
      Palmer’s challenge to the district court’s determination that his claims
must be raised under 28 U.S.C. §§ 2255 or 2241 is also without merit.
Challenges to the validity of a federal conviction must be raised in a § 2255
motion, and the district court correctly concluded that it lacked jurisdiction
under § 2255. See Padilla v. United States, 416 F.3d 424, 425–26 (5th Cir.
2005); Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Further, Palmer failed
to show that he could meet the requirements of the § 2255(e) savings clause.
See Padilla, 416 F.3d at 426; Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001).
      According to Palmer, the district court misquoted the record, failed to
consider all of the issues that he raised, and erred in dismissing his complaint
with prejudice as frivolous and for failure to state a claim. The record shows
that the district court addressed the relevant issues and did not err in



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                                  No. 16-50102

dismissing Palmer’s complaint as frivolous and for failure to state a claim upon
which relief could be granted. Heck, 512 U.S. at 486–87.
      Finally, Palmer’s motion to expedite his appeal is denied. See 5th Cir.
R. 27.5.
      Palmer’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219–20 (5th Cir. 1983). Because the appeal is frivolous,
it is dismissed. See 5th Cir. R. 42.2.
      The district court’s dismissal of Palmer’s complaint as frivolous and our
dismissal of his appeal as frivolous count as two strikes for purposes of 28
U.S.C. § 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1761–64 (2015);
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Palmer is cautioned
that if he accumulates three strikes under § 1915(g), he will no longer be
allowed to proceed in forma pauperis in any civil action or appeal filed while
he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
      APPEAL DISMISSED AS FRIVOLOUS; MOTION TO EXPEDITE
APPEAL DENIED; SANCTION WARNING ISSUED.




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