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Jesus Hernandez v. M. Martin , 582 F. App'x 547 ( 2014 )


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  •      Case: 14-60045      Document: 00512800541         Page: 1    Date Filed: 10/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60045                                FILED
Summary Calendar                        October 10, 2014
Lyle W. Cayce
Clerk
JESUS ANTONIO HERNANDEZ,
Petitioner-Appellant
v.
M. MARTIN, Warden, Federal Correctional Complex, Yazoo City, Mississippi,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:13-CV-19
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Jesus Antonio Hernandez, federal prisoner # 08996-032, was convicted
in the Eastern District of Kentucky of engaging in a continuing criminal
enterprise in violation of 21 U.S.C. § 848, and conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956. He filed a purported habeas
petition under 28 U.S.C. § 2241 in the Southern District of Mississippi, where
he is incarcerated. The district court construed the petition as a 28 U.S.C.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60045     Document: 00512800541     Page: 2   Date Filed: 10/10/2014
No. 14-60045
§ 2255 motion and dismissed it for lack of jurisdiction. Hernandez was denied
leave to proceed in forma pauperis (IFP) on appeal, and the district court
certified that the appeal was not taken in good faith. Hernandez now moves
for leave to appeal IFP.
By moving for IFP, Hernandez contests the district court’s certification
that the appeal is not taken in good faith. Baugh v. Taylor,
    117 F.3d 197
    , 202
(5th Cir. 1997); FED. R. APP. P. 24(a)(3)(A).     We ask “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). We may rule on the merits or dismiss the appeal “where
the merits are so intertwined with the certification decision as to constitute the
same issue.”
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
Relying upon Regalado Cuellar v. United States,
    553 U.S. 550 
    (2008),
which modified the definition of money laundering under § 1956, Hernandez
contends that he was convicted of a nonexistent offense. Because he attacked
the validity of his conviction, his petition was properly construed as a § 2255
motion. See Tolliver v. Dobre,
    211 F.3d 876
    , 877-78 (5th Cir. 2000). Hernandez
does not show that his claims could be brought in a § 2241 petition under the
savings clause of § 2255(e), because he does not establish that a claim based
upon Regalado Cuellar was foreclosed by circuit law at the time when he could
have filed a first § 2255 motion. See Reyes-Requena v. United States,
    243 F.3d 893
    , 904 (5th Cir. 2001); § 2255(f)(3). The action was properly dismissed
because the district court did not have jurisdiction over the § 2255 motion,
which could be filed, if at all, in the district where Hernandez was convicted.
See Padilla v. United States,
    416 F.3d 424
    , 425 (5th Cir. 2005).
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Case: 14-60045    Document: 00512800541       Page: 3   Date Filed: 10/10/2014
No. 14-60045
Thus, Hernandez has identified no nonfrivolous issue for appeal. His
IFP motion is DENIED and the appeal is DISMISSED. See
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
3