     Case: 13-30510       Document: 00512406731         Page: 1     Date Filed: 10/15/2013




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

                                                                            FILED
                                                                         October 15, 2013
                                     No. 13-30510
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




VICTOR C. FOURSTAR, JR.,

                                                  Petitioner–Appellant,

v.

RICARDO MARTINEZ,

                                                  Respondent–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CV-2110




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*


       Victor Fourstar, Jr., federal prisoner # 07418-046, appeals the dismissal
for lack of jurisdiction of his 28 U.S.C. § 2241 petition, in which he challenged

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-30510     Document: 00512406731      Page: 2    Date Filed: 10/15/2013

                                   No. 13-30510

(1) the validity of his 2002 conviction of, and 188-month sentence for, aggravated
sexual abuse in violation of 18 U.S.C. § 2241(a) and (2) the use of an underlying
state-court conviction to enhance that sentence. We review de novo the district
court’s determinations that Fourstar’s claims arose under 28 U.S.C. § 2255 and
that he had not met the requirements to proceed with a § 2241 petition under
the savings clause of § 2255(e). Padilla v. United States, 416 F.3d 424, 425 (5th
Cir. 2005).
      If his brief is liberally construed, Fourstar appears to argue, for the first
time, that his § 2241 petition falls within the savings clause based on Bailey v.
United States, 516 U.S. 137 (1995). Because the argument is raised for the first
time on appeal, we will not consider it. See Wilson v. Roy, 643 F.3d 433, 435 n.1
(5th Cir. 2011). Even if we were to consider the newly raised argument, Four-
star cannot rely on Bailey to satisfy the savings clause because Bailey involved
a firearms offense, not a sexual abuse offense, and was decided in 1995, well
before Fourstar’s 2002 conviction. Thus, Fourstar has failed to meet the actual-
innocence and retroactivity requirements of the savings clause. See Bailey, 516
U.S. at 143; see also Reyes-Requena v. United States, 243 F.3d 893, 900–01,
903–04 (5th Cir. 2001).
      The instant appeal is without arguable merit and is therefore frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, the
appeal is DISMISSED. See 5TH CIR. R. 42.2. Additionally, because Fourstar’s
§ 2241 petition is repetitive of earlier filings, he is cautioned that the filing of
future frivolous, repetitive, or otherwise abusive challenges to his conviction or
sentence will invite the imposition of sanctions, including dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court or any
court subject to this court’s jurisdiction.




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