IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10913

Summary Calendar

MARION DAVID HAGER,

Petitioner-Appellant

v.

UNDERWOOD, Warden,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-355

Before OWEN, Chief Judge, and DENNIS and OLDHAM, Circuit Judges.

PER CURIAM:*

Marion David Hager, now federal prisoner # 54182-380, moves for leave 

to proceed in forma pauperis (IFP) on appeal and for the appointment of 

appellate counsel. Hager is appealing the district court’s summary dismissal,

for lack of subject matter jurisdiction, of his 28 U.S.C. § 2241 habeas corpus 

petition challenging his 72-month sentence for possessing a firearm as a 

convicted felon. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2020

Lyle W. Cayce

Clerk

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By moving to proceed IFP in this court, Hager is challenging the district 

court’s denial of his IFP motion and its certification that his appeal is not taken 

in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In 

evaluating whether an appeal is taken in good faith, our inquiry is “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). To the extent that Hager’s appeal 

extends to the order denying his Federal Rule of Civil Procedure 60(b) motion 

for reconsideration, he has failed to brief, and has thereby abandoned, any 

appellate challenge to that order. See Yohey v. Collins, 985 F.2d 222, 224-25 

(5th Cir. 1993). 

Hager’s challenge to the dismissal of his § 2241 petition on the pleadings

is reviewed de novo. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000). 

Under the “savings clause” of 28 U.S.C. § 2255, a petitioner may challenge the 

legality of his sentence in a § 2241 petition if he can affirmatively demonstrate 

that the § 2255 remedy is inadequate or ineffective. See Pack v. Yusuff, 218 

F.3d 448, 452 (5th Cir. 2000); § 2255(e). To carry his burden on this issue, the 

petitioner must establish that (1) his claim is “based on a retroactively 

applicable Supreme Court decision which establishes that the petitioner may 

have been convicted of a nonexistent offense” and (2) his claim was “foreclosed 

by circuit law at the time when the claim should have been raised in [his] trial, 

appeal, or first § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 

904 (5th Cir. 2001).

Hager has failed to make the showing required under the § 2255 savings 

clause. First, Hager improperly relies on Nelson v. Colorado, 137 S. Ct. 1249, 

1255-58 (2017), which is substantively inapposite. Furthermore, as Hager 

acknowledges, Nelson did not announce a new rule of constitutional law, and 

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it has not been designated as retroactive on collateral review. See Nelson, 

137 S. Ct. at 1255-58; Reyes-Requena, 243 F.3d at 904. 

Secondly, there is no merit to Hager’s apparent argument that his 

alleged actual innocence with respect to his sentence is sufficient to establish 

the viability of his § 2241 petition. We have held that “a claim of actual 

innocence of a [sentencing] enhancement is not a claim of actual innocence of 

the crime of conviction and, thus, not the type of claim that warrants review 

under § 2241.” In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011).

Finally, there is no merit to Hager’s contention that he is entitled to 

bring his § 2241 petition under the express terms of that statute without 

satisfying the requirements that Reyes-Requena added to § 2255. Hager 

argues that our decision in Reyes-Requena is inconsistent with the text passed 

by Congress. Cf. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 

1076, 1084–85 (11th Cir. 2017) (en banc) (W. Pryor, J.) (describing ReyesRequena as “atextual”); Prost v. Anderson, 636 F.3d 578, 592–93 (10th Cir. 

2011) (Gorsuch, J.) (same). But we are bound by Reyes-Requena just the same.

In sum, Hager has failed to raise a nonfrivolous issue for appeal. See 

Howard, 707 F.2d at 219-20. This appeal is thus DISMISSED as frivolous, and 

Hager’s motions for leave to proceed IFP on appeal and for appointment of 

counsel are DENIED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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