Nelson v. Reese , 214 F. App'x 465 ( 2007 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 January 23, 2007
    Charles R. Fulbruge III
    Clerk
    No. 06-60337
    Summary Calendar
    MICHAEL NELSON,
    Petitioner-Appellant,
    versus
    CONSTANCE REESE,
    Respondent-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 5:05-CV-13
    --------------------
    Before DeMOSS, STEWART, and PRADO, Circuit Judges.
    PER CURIAM:*
    Michael Nelson, federal prisoner # 02461-095, moves to
    proceed in forma pauperis (IFP) on appeal from the district
    court’s dismissal of his 
    28 U.S.C. § 2241
     petition, wherein he
    challenged his conviction in the Eastern District of Louisiana
    for conspiracy to possess cocaine base with intent to distribute
    and two counts of distribution of cocaine base.   The United
    States District Court for the Southern District of Mississippi
    determined that it lacked jurisdiction over Nelson’s § 2241
    *
    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    this opinion should not be published and is not precedent except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.
    No. 06-60337
    -2-
    petition because he was actually attempting to file a successive
    
    28 U.S.C. § 2255
     motion.
    A movant for leave to proceed IFP on appeal must show that
    he is a pauper and that the appeal is taken in good faith, i.e.,
    the appeal presents nonfrivolous issues.   Carson v. Polley,
    
    689 F.2d 562
    , 586 (5th Cir. 1982); 
    28 U.S.C. § 1915
    (a)(3).
    Nelson argues that the district court erroneously concluded that
    his petition was successive, that he is entitled to seek relief
    under § 2241 pursuant to the savings clause of § 2255, and that
    he is entitled to seek relief under the All Writs Act, 
    28 U.S.C. § 1651
    (a).   Nelson challenges his underlying sentence by arguing
    that (1) his sentence must be reopened because two state
    convictions used to enhance his sentence under the Armed Career
    Criminal Act (ACCA) have been vacated by the state court and
    (2) his sentence exceeded the statutory maximum because the
    sentencing judge determined sentencing enhancements based on a
    preponderance of the evidence, in violation of United States v.
    Booker, 
    543 U.S. 220
     (2005).
    We have previously rejected identical arguments in multiple
    requests from Nelson to file successive § 2255 motions.    See,
    e.g., In re Nelson, No. 05-30574 at 2-3 (5th Cir. July 19, 2005)
    (unpublished).   Although Nelson seeks to proceed under § 2241
    pursuant to the savings clause of § 2255, he has not shown that
    the remedy available under § 2255 is inadequate or ineffective.
    See Reyes-Requena v. United States, 
    243 F.3d 893
    , 904 (5th Cir.
    No. 06-60337
    -3-
    2001); see also Pack v. Yusuff, 
    218 F.3d 448
    , 452-53 (5th Cir.
    2000) (prior unsuccessful § 2255 motion, or the inability to meet
    the second or successive requirements, does not render § 2255
    inadequate or ineffective).   To the extent Nelson argues that the
    Booker line of authority applies to his case, his argument is
    unavailing in light of Padilla v. United States, 
    416 F.3d 424
    ,
    426-27 (5th Cir. 2005).
    “[T]he All Writs Act is a residual source of authority to
    issue writs that are not otherwise covered by statute.   Where a
    statute specifically addresses the particular issue at hand, it
    is that authority, and not the All Writs Act, that is
    controlling.”   Carlisle v. United States, 
    517 U.S. 416
    , 429
    (1996)(quotation marks omitted).   Because § 2255 provides the
    primary means of collaterally attacking a federal conviction and
    sentence, see Reyes-Requena, 
    243 F.3d at 901
    , the All Writs Act
    is not applicable to Nelson’s petition.
    Nelson fails to show that he will raise a nonfrivolous issue
    on appeal.   Consequently, the motion for leave to proceed IFP is
    denied and the appeal is dismissed as frivolous.    See Howard v.
    King, 
    707 F.2d 215
    , 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
    Nelson has been previously sanctioned by this court for
    filing frivolous pleadings and was warned that further frivolous
    or repetitive filings would subject him to additional sanctions.
    See In re Nelson, No. 05-30574 at 2-3.    Despite this sanction and
    warning, Nelson has continued to raise the same arguments in
    No. 06-60337
    -4-
    additional frivolous pleadings.   Therefore, we order Nelson to
    pay a monetary sanction of $250 to the clerk of this court.    The
    clerk of this court and the clerks of all federal district courts
    within this circuit are directed to refuse to file any pro se
    pleading challenging the aforementioned conviction and sentence
    unless Nelson submits proof of satisfaction of this sanction.     If
    Nelson attempts to file any pleadings challenging his conviction
    and sentence in this court without such proof the clerk will
    docket them for administrative purposes only.   Any other
    submissions which do not show proof that the sanction has been
    paid will neither be addressed nor acknowledged.
    IFP DENIED; APPEAL DISMISSED; SANCTION IMPOSED.