     Case: 15-50829      Document: 00513564041         Page: 1    Date Filed: 06/24/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50829
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 24, 2016
LINDSEY KENT SPRINGER,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

J. S. WILLIS, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CV-191


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Lindsey Kent Springer moves for leave to proceed in forma pauperis
(IFP) in his appeal from the dismissal of his 28 U.S.C. § 2241 petition, in which
he challenged his convictions for conspiracy to defraud the United States, tax
evasion, and failure to file tax returns. A movant seeking leave to proceed IFP
on appeal must demonstrate that he is a pauper and that he will raise a




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50829

nonfrivolous issue on appeal. See 28 U.S.C. § 1915(a)(1); Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982). Springer fails this second requirement.
      In support of his IFP motion, Springer argues the same claims raised in
his § 2241 petition, specifically that the trial court misunderstood that the tax
evasion statute, 26 U.S.C. § 7201, proscribes two separate crimes. He argues
that the Supreme Court’s recent decision in Kawashima v. Holder, 132 S. Ct.
1166 (2012), enunciated this standard and is applicable to his case because the
opinion was issued before Springer’s conviction became final. Springer avers
that the grand jury indicted him on one of the crimes, but the trial court
instructed the jury on the other crime.
      The savings clause under 28 U.S.C. § 2255 allows a federal prisoner to
challenge his conviction under § 2241 if the remedies provided under § 2255
are “inadequate or ineffective to test the legality of his detention.” A petitioner
seeking to establish that his § 2255 remedy was inadequate or ineffective must
make a claim (i) “based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of a nonexistent
offense” that (ii) “was foreclosed by circuit law at the time when the claim
should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.”
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
      Kawashima does not establish that Springer was convicted of a
nonexistent offense. In that decision, the Supreme Court merely quoted its
earlier decision in Sansone v. United States, 380 U.S. 343 (1965), when it
explained that “§ 7201 includes two offenses: ‘the offense of willfully
attempting to evade or defeat the assessment of a tax as well as the offense of
willfully attempting to evade or defeat the payment of a tax.’” Kawashima, 132
S. Ct. at 1175 (quoting Sansone, 380 U.S. at 354). Springer has not shown that
there is a Supreme Court decision with retroactive effect on his claim or that



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                                  No. 15-50829

his claim was precluded by established circuit law at the time of his trial,
appeal, or initial § 2255 motion. See Reyes-Requena, 243 F.3d at 904.
     Springer has not met the burden of showing that the § 2255 remedy is
inadequate or ineffective; therefore, the district court did not err in dismissing
his § 2241 petition. See § 2255(e). Accordingly, Springer’s request for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous.
See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); see also 5TH CIR.
R. 42.2.




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