IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-11131

Summary Calendar

SAM D. BELL,

Petitioner-Appellant

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL; KAREN EDENFIELD,

Warden,

Respondents-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:11-CV-78

Before SMITH, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Sam D. Bell, federal prisoner # 11973-078, moves for leave to proceed in

forma pauperis (IFP) on appeal from the district court’s dismissal of his petition

for habeas corpus relief pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. 

Bell challenges his conviction of being a convicted felon in possession of a

firearm. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 11, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-11131

To proceed IFP on appeal, a movant must demonstrate that he is a pauper1

and that he will raise nonfrivolous issues for appeal. Carson v. Polley, 689 F.2d

562, 586 (5th Cir. 1982). Relevant to the grounds for dismissal in the district

court, Bell argues that 28 U.S.C. § 2255 violates the Suspension Clause; that

§ 2255 is inadequate to test the legality of his conviction because it contains a

one-year statute of limitations; and that he should not be required to proceed

under § 2255 because he is challenging the validity of a statute and not the

validity of his conviction.

A writ of habeas corpus filed under § 2241 and a motion to vacate, set

aside, or correct a sentence filed under § 2255 are “distinct mechanisms for

seeking post-conviction relief.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). 

Section 2255 provides the primary means of collaterally attacking a federal

conviction and sentence. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). 

Section 2241 is generally used to attack the manner in which a sentence is

executed. Id. A petition filed under § 2241 which attacks errors that occurred

at trial or sentencing should be construed as a § 2255 motion. Id. at 877-78. 

A federal prisoner may attack the validity of his conviction in a § 2241

petition if he can meet the requirements of § 2255(e)’s savings clause. Kinder v.

Purdy, 222 F.3d 209, 212 (5th Cir. 2000). The prisoner bears the burden of

showing that the remedy under § 2255 would be “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). A petitioner’s inability to meet the procedural

requirements of § 2255 is insufficient to meet this burden. See Pack, 218 F.3d

at 452-53. Rather, a prisoner who wishes to proceed under the savings clause

must establish that his claim “is based on a retroactively applicable Supreme

Court decision which establishes that the petitioner may have been convicted of

There is some indication that Bell is not a pauper; however, because we conclude 1

that he does not raise a nonfrivolous ground for appeal, we need not decide that issue.

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No. 11-11131

a nonexistent offense” and that the claim “was foreclosed by circuit law at the

time when the claim should have been raised.” Reyes-Requena, 243 F.3d at 904. 

Bell contends that Congress lacked authority under the Commerce Clause

to enact § 922(g); that § 922(g) violates the Tenth Amendment; that he did not

possess a weapon in a way that affected interstate commerce; that the trial court

lacked jurisdiction over his prosecution; and that § 922(g)(2) is not justified by

the Necessary and Proper Clause because it is duplicative of state law. He does

not cite to any retroactively applicable Supreme Court decision establishing that

he may have been convicted of a non-offense. See Reyes-Requena, 243 F.3d at

904.

To the extent Bell argues that the dismissal of his § 2241 petition

impermissibly suspends the writ of habeas corpus, his contention lacks merit. 

This court has held that the restrictions on obtaining relief pursuant to § 2241

and the savings clause of § 2255 do not violate the Suspension Clause. Wesson

v. United States Penitentiary Beaumont, TX, 305 F.3d 343, 347 (5th Cir. 2002);

Reyes-Requena, 243 F.3d at 901 n.19. 

The district court correctly determined that Bell could not proceed under

§ 2241. Bell cannot demonstrate that he will raise any nonfrivolous issues for

appeal. See Carson, 689 F.2d at 586.

IFP DENIED. APPEAL DISMISSED.

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