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John Rutoskey v. D. Harmon ( 2018 )


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  •      Case: 17-10527      Document: 00514544011         Page: 1    Date Filed: 07/06/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10527                       United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
July 6, 2018
JOHN MITCHELL RUTOSKEY,                                                  Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
D. J. HARMON, Warden; FEDERAL BUREAU OF PRISONS; JEFFERSON
B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondents-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-655
Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
John Mitchell Rutoskey, federal prisoner # 10560-014, 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 conviction for conspiracy to
commit healthcare fraud, and from the dismissal of his postjudgment motion
for reconsideration. A movant seeking leave to proceed IFP on appeal must
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10527
demonstrate that he is a pauper and that he will raise a nonfrivolous issue on
appeal. See 28 U.S.C. § 1915(a)(1); Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir.
1982).
In support of his IFP motion, Rutoskey reiterates the same argument he
made in his § 2241 petition, specifically that the remedy afforded by 28 U.S.C.
§ 2255 is an inadequate or ineffective vehicle for him to bring his constitutional
claims challenging his conviction because there had been inordinate delays in
the handling of his § 2255 motion. The savings clause under § 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.” § 2255(e). A § 2241 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 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.” Reyes-Requena v.
United States,
    243 F.3d 893
    , 904 (5th Cir. 2001).
Rutoskey has not met the burden of showing that the § 2255 remedy is
an inadequate or ineffective vehicle for his constitutional challenges to his
conviction. Therefore, the district court did not err in dismissing his § 2241
petition for lack of jurisdiction. See § 2255(e). There is no arguable legal merit
to Rutoskey’s argument that the denial of his § 2241 petition is invalid because
the district court adopted a report issued by a magistrate judge who was
unconstitutionally appointed. Finally, Rutoskey is statutorily obligated to pay
the appellate filing fee in this case regardless of the outcome of his case. See
28 U.S.C. § 1915(b)(1); Williams v. Roberts,
    116 F.3d 1126
    , 1128 (5th Cir.
1997).
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No. 17-10527
Accordingly, Rutoskey’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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