Coy Owens v. Keith Roy

Case: 09-40984 Document: 00511219410 Page: 1 Date Filed: 08/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2010
No. 09-40984
Summary Calendar Lyle W. Cayce
Clerk
COY LYNN OWENS,
Petitioner-Appellant,
veersus
KEITH ROY, Warden, Texarkana FCI,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:08-CV-227
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Coy Owens, federal prisoner # 04702-078, seeks leave to proceed in forma
pauperis (“IFP”) on appeal from the dismissal of his 28 U.S.C. § 2241 petition,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40984 Document: 00511219410 Page: 2 Date Filed: 08/30/2010
No. 09-40984
which challenged his convictions for various mail fraud offenses and arson. He
argued that his speedy trial rights were violated and that he was actually inno-
cent of the offense of conviction. Because the district court determined that
Owens’s claims were challenges to his conviction under 28 U.S.C. § 2255, it dis-
missed the petition for lack of jurisdiction as an unauthorized successive § 2255
motion.
A movant for IFP on appeal must show that he is a pauper and that he will
present a nonfrivolous appellate issue. Carson v. Polley, 689 F.2d 562, 586 (5th
Cir. 1982). Owens argues that his claims fall within the savings clause of 28
U.S.C. § 2255 because Zedner v. United States, 547 U.S. 489 (2006), establishes
his innocence and could not have been previously raised. A § 2241 petition at-
tacking custody resulting from a federally-imposed sentence may be considered
only where the petitioner establishes that § 2255 is “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). To show that § 2255 was rendered inadequate or
ineffective, Owens must show that his claim (1) “is based on a retroactively ap-
plicable Supreme Court decision which establishes that the petitioner may have
been convicted of a nonexistent offense” and (2) “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, 243 F.3d at 904.
Zedner, 547 U.S. at 500-09, dealt with issues relating to the Speedy Trial
Act. Because Zedner does not establish that Owens was convicted of a nonexis-
tent offense, we need not determine whether Zedner is retroactive or whether
Owens’s claim was foreclosed when he filed his prior § 2255 motion or direct ap-
peal.
Owens also argues that the district court lacked jurisdiction over his
§ 2241 petition by virtue of his transfer to Minnesota. The only district that may
consider a habeas corpus challenge pursuant to § 2241 is the district in which
the prisoner is confined at the time he filed his § 2241 petition. Rumsfeld v.
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No. 09-40984
Padilla, 542 U.S. 426, 442-43 (2004); Lee v. Wetzel, 244 F.3d 370, 375 n.5 (5th
Cir. 2001). Because Owens was confined in the Eastern District of Texas at the
time he filed the present § 2241 petition, the district court did not err by consid-
ering the petition. See Padilla, 542 U.S. at 442-43.
Owens has not established that he will raise a nonfrivolous appellate is-
sue. See Carson, 689 F.2d at 586. Accordingly, we DENY the motion to proceed
IFP on appeal, and we DISMISS Owens’s appeal as frivolous. See Baugh v. Tay-
lor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); 5 TH C IR. R. 42.2. Owens’s motion for
the appointment of counsel is DENIED. Owens is WARNED that future frivo-
lous filings may result in the imposition of sanctions.
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