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United States v. Javier Perez ( 2015 )


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  •      Case: 15-40364      Document: 00513136335         Page: 1    Date Filed: 07/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40364                                  FILED
Summary Calendar                            July 30, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER HUGO PEREZ, also known as El Vecino,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:09-CR-2897
Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Javier Hugo Perez, federal prisoner # 31562-279, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
denial of his post-conviction motion to dismiss the indictment. The district
court denied Perez’s IFP motion and certified that the appeal was not taken in
good faith. By moving for IFP status, Perez is challenging the district court’s
certification. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40364     Document: 00513136335    Page: 2   Date Filed: 07/30/2015
No. 15-40364
Perez must have statutory authority for the filing of his motion to
dismiss the indictment. See Veldhoen v. United States Coast Guard,
    35 F.3d 222
    , 225 (5th Cir. 1994). Had Perez’s motion been construed as a 28 U.S.C.
§ 2255 motion, the district court would have lacked jurisdiction to consider it
because he had previously filed a § 2255 motion and we have not authorized
him to file a successive § 2255 motion. See Hooker v. Sivley,
    187 F.3d 680
    , 681-
82 (5th Cir. 1999); 28 U.S.C. § 2244(b)(3)(A). Further, Perez’s jurisdictional
challenge to the indictment was not a claim “(i) that is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense and (ii) that 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,” and consequently, his motion
could not have been construed as a 28 U.S.C. § 2241 petition brought via the
savings clause of § 2255. See Reyes-Requena v. United States,
    243 F.3d 893
    ,
904 (5th Cir. 2001).
Although 18 U.S.C. § 3582(c) allows a district court to modify a sentence
under certain narrow circumstances, none of those circumstances were
implicated by Perez’s motion to dismiss the indictment. See § 3582(c). He was
also precluded from obtaining relief under 18 U.S.C. § 3742, as relief
thereunder is reserved only for direct appeals. See United States v. Early,
    27 F.3d 140
    , 142 (5th Cir. 1994). Finally, Perez’s motion did not qualify as a writ
of coram nobis or a writ of audita querela. See United States v. Miller,
    599 F.3d 484
    , 489 (5th Cir. 2010); Jimenez v. Trominski,
    91 F.3d 767
    , 768 (5th Cir. 1996).
Perez’s motion to dismiss the indictment did not fall into a recognized
category of post-conviction motions, and therefore it was, in essence, “a
meaningless, unauthorized motion” which the district court was without
jurisdiction to entertain. See
    Early, 27 F.3d at 142
    . Because he has failed to
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Case: 15-40364    Document: 00513136335     Page: 3   Date Filed: 07/30/2015
No. 15-40364
show that the instant appeal involves legal points arguable on their merits, see
Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983), Perez’s IFP motion is
denied, and his appeal is dismissed as frivolous. See
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
MOTION DENIED; APPEAL DISMISSED.
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