     Case: 18-10132      Document: 00514620054         Page: 1    Date Filed: 08/28/2018




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


                                    No. 18-10132                                 FILED
                                  Summary Calendar                         August 28, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
STEVEN DEWAYNE JENKINS,

                                                 Petitioner-Appellant

v.

D. J. HARMON, Warden, FCI-Seagoville,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:17-CV-831


Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Steven Dewayne Jenkins, federal prisoner # 03439-063, moves for leave
to proceed in forma pauperis (IFP) on appeal from the dismissal of his 28 U.S.C.
§ 2241 petition. His petition challenged the 15-year sentence imposed under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), in connection with
his conviction for possession of a firearm by a felon.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10132    Document: 00514620054     Page: 2   Date Filed: 08/28/2018


                                 No. 18-10132

      We will not grant the motion unless Jenkins shows that he raises a
nonfrivolous issue and thus is taking the appeal in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Jenkins has not
met this standard.
      A petitioner can attack the validity of his conviction and sentence in a
§ 2241 petition only if he can meet the requirements of the “savings clause” of
§ 2255(e). Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). The petitioner
shoulders the burden of affirmatively showing that the remedy under § 2255
would be “inadequate or ineffective to test the legality of his detention.”
§ 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001).
      Jenkins argues that his claims fall within the savings clause of 28 U.S.C.
§ 2255(e) because Mathis v. United States, 136 S. Ct. 2243 (2016), establishes
his innocence of the sentencing provisions of the ACCA and could not have been
previously raised. He does not show that he was convicted of a nonexistent
crime or that he is actually innocent of the firearm offense for which he was
convicted in the instant case.     Additionally, Mathis is not retroactively
applicable. See Mathis, 136 S. Ct. at 2257; In re Lott, 838 F.3d 522, 523 (5th
Cir. 2016) (denying authorization to file a successive § 2255 motion because
Mathis did not set forth a new rule of constitutional law that had been made
retroactive to cases on collateral review). Accordingly, Jenkins has not shown
that he could proceed under § 2241 because he did not meet the requirements
of the savings clause of § 2255(e). See Reyes-Requena, 243 F.3d at 904.




                                       2
    Case: 18-10132   Document: 00514620054     Page: 3   Date Filed: 08/28/2018


                                No. 18-10132

     Jenkins has failed to raise a nonfrivolous issue for appeal. His motion to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous.
See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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