### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-41017 Summary Calendar

GEORGE H. WATSON, Petitioner-Appellant

v. JOHN FOX, Respondent-Appellee

Appeals from the United States District Court for the Eastern District of Texas USDC No. 1:11-CV-226

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * George H. Watson, former federal prisoner # 83387-180, was convicted in 2008 of conspiracy to commit wire fraud a n d violate federal law and making a f al se statement relating to a loan, and he was sentenced to 57 mo nth s o f imprisonment. He did not appeal his convictions or sentence. In May 2011, while he was still incarcerated, W at son filed a petition pursuant to 28 U.S.C. § 2241, in which he challenged his 2008 convictions. The district court denied Watson’s petiti o n b e cause the claims raised therein U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 17, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-41017 Document: 00511923229 Page: 1 Date Filed: 07/17/2012No. 11-41017

challenged a judgment of conviction and not the manner in which Watson’s sentence was executed, and Watson failed to de m o nstrate that the remedy under 28 U.S.C. § 2255 was inadequate or ineffective to test the legality o f his detention. Watson moved for leave to proceed in forma pauperis (IFP) on appeal from that judgment, but the district court denied the IFP motion based on its finding that Watson w as financially ineligible for IFP status. Watson now moves this court for leave to proceed IFP on appeal. Under Federal Rule of Appellate Procedure 24(a)(5), we may entertain a motion to proc e e d I F P wh en the district court has denied a litigant leave to proceed IFP. To be granted leave to proceed IFP on appeal, Watson must show not only that he is pauper but also that he will r aise a nonfrivolous issue on 1 appeal. See Carson v. Polley , 689 F.2d 562, 586 (5th Cir. 1982). If the appeal is frivolous, we may dismiss it sua sponte. 5th Cir. R. 42.2. A § 224 1 petition that challenges errors at trial or sentencing, like Watson’s, is properly construed as a § 2 2 5 5 motion. Reyes-Requena v. United States , 243 F.3d 893, 901 (5th Cir. 2001). Under the “savings clause” of § 2255, however, a prisoner may be permitted to raise his claims in a § 2241 petition, if he can demonstrate that the § 2255 remedy would be “inadequate or ineffective to test the legality of his detention.” See id. (quoting § 2255). The savings clause of § 2255 applies to a c l ai m (i) that is based on a retroactively applicable Supreme Court decision, (ii) that was foreclosed by circuit law at the time when the claim should have been raised, and (iii) which establishes that the petitioner may have been convicted of a nonexistent offense. Id. at 904. Watson makes no argument that he satisfies this stan dar d b ut argues that “he was not made aware of the defects in his indictment until after the statute

Becaus e we det erm in e t h at the app eal is frivolous , we do not addres s Wats on’s 1 argum ents abo ut hisf inanc ial st atus

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of limitations had run on his § 2255 rights” and that “[t]he § 2255 s t at u t e of limitations is capricious, arbitrary and unsu p p ortable.” We have held that a prior unsuccessful § 2255 motion, or the inability to meet the requirements for filing a successive § 2255 motion, does not make the § 2255 remedy inadequate. Tolliver v. Dobre , 211 F.3d 876, 878 (5th Cir. 2000). Thus, Watson has failed to demonstrate that the remedy under § 2255 is inadequate or ineffective and that he will raise a nonfrivolous issue on appeal. See Carson , 689 F.2d at 586. Accordingly, his motion to proceed IFP is DENIED, and his appeal is DISMISSED as frivolous

. See Howard v. King, 707 F

. 2 d 2 1 5 , 220 (5th Cir. 1983); 5 T H C I R

. R. 42.2.

3 Case: 11-41017 Document: 00511923229 Page: 3 Date Filed: 07/17/2012