     Case: 19-60197      Document: 00515119341         Page: 1    Date Filed: 09/16/2019




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

                                                                               FILED
                                    No. 19-60197                       September 16, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
JOSEPH R. DICKEY,

                                                 Petitioner-Appellant

v.

C. NASH, Warden, United States Penitentiary Yazoo City,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:19-CV-101


Before ELROD, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Joseph R. Dickey, federal prisoner # 25345-001, pleaded guilty to
numerous counts relating to child pornography and interstate travel to engage
in sexual acts with a juvenile, and he received an aggregate sentence of 135
years in prison.      He has filed an unsuccessful 28 U.S.C. § 2255 motion
challenging these convictions.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-60197

      Following this, Dickey filed the instant petition pursuant to 28 U.S.C.
§ 2241, in which he argued that he was actually innocent of at least some of
his offenses and that his trial attorneys were ineffective. The district court
denied Dickey’s petition because he was challenging the judgment of conviction
rather than the manner in which his sentence was executed, and Dickey failed
to demonstrate that the remedy under § 2255 was inadequate or ineffective to
test the legality of his detention. Dickey moved for leave to proceed in forma
pauperis (IFP) on appeal from that judgment, but the district court denied the
motion based on its finding that Dickey was financially ineligible for IFP
status. He now moves this court for leave to proceed IFP on appeal.
      Under Federal Rule of Appellate Procedure 24(a)(5), we may entertain a
motion to proceed IFP when the district court has denied a litigant leave to
proceed IFP. To be granted leave to proceed IFP on appeal, Dickey must show
not only that he is pauper 1 but also that he will raise a nonfrivolous issue on
appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). If the appeal
is frivolous, we may dismiss it sua sponte. 5TH CIR. R. 42.2.
      A § 2241 petition that challenges errors at trial or sentencing, like
Dickey’s, is properly construed as a § 2255 motion. Reyes-Requena v. United
States, 243 F.3d 893, 901 (5th Cir. 2001). Under the “savings clause” of § 2255,
however, a prisoner may be permitted to raise his claims in a § 2241 petition if
he can demonstrate that the § 2255 remedy would be “inadequate or ineffective
to test the legality of his detention.” See id. (quoting § 2255). The savings
clause of § 2255 applies to a claim (i) that is based on a retroactively applicable
Supreme Court decision, (ii) that was foreclosed by circuit law at the time when
the claim should have been raised, and (iii) which establishes that the



      1Because we determine that the appeal is frivolous, we do not address Dickey’s
arguments about his financial status.


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                                No. 19-60197

petitioner may have been convicted of a nonexistent offense. Reyes-Requena,
243 F.3d at 904.
      Dickey makes no argument that he satisfies this standard and instead
argues that he should not be required to do so because his claims of actual
innocence and his inability to satisfy the standards for filing a successive
§ 2255 motion warrant consideration of his claims. We have held that neither
a prior unsuccessful § 2255 motion nor the inability to meet the requirements
for filing a successive § 2255 motion makes the § 2255 remedy inadequate.
Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). Dickey has failed to
demonstrate that the remedy under § 2255 is inadequate or ineffective and
that he will raise a nonfrivolous issue on appeal. See Carson, 689 F.2d at 586.
Accordingly, his motion to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. Dickey’s motion for leave to file a supplemental brief
is DENIED as unnecessary.




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