### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 pri soner # 11973-078, moves for leave to proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of his petition for hab eas corpus relief pursuant to 28 U.S.C. § 2241 for lack of jurisdiction. Bell challenges his convi c tion of being a convicted felon in possession of a firearm. 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 Sep tem ber 1 1, 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: 11-11131 Document: 00511982447 Page: 1 Date Filed: 09/11/2012No. 11-11131

To proceed IFP on appeal, a movant must demonstrate that he is a pauper 1 and that he will raise nonfrivolous issues for appeal. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Re l e v a n t t o the grounds for dismissal in the district court, Bell argues that 28 U.S.C. § 2255 violates th e S u spension Clause; that § 2255 is inadequate to test the legality of his conviction because it co n t a ins a one-year statute of limit a t i o n s ; 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 m o tion to vacate, set aside, or correc t a s entence 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 f e d e ral conviction a n d s e n t e nce. 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 construe d a s a § 2 2 55 motion. Id. at 877-78. A federal prison e r m ay attack the validity of his conviction in a § 2241 petition if he can meet the requirements of § 2255(e)’s savings clause. Kinder v. Purd y , 2 2 2 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. Unit e d S t a t es , 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 4 5 2

- 5 3

. Rather, a prisoner who wishes to proceed under the savings clause must establish that his claim “is based on a r e tr o actively applicable Supreme Court decision which establishes that the petitioner may have been convicted of

There is so me indi cat ion that B e ll is not a paup er; how ever, beca use we conc lude 1 thathed oes no t rais e ano nfrivolous gro und forap peal, wene ed not dec idethat iss ue. 2 Case: 11-11131 Document: 00511982447 Page: 2 Date Filed: 09/11/2012No. 11-11131

a nonexistent offense” and that the claim “was foreclos e d 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 Re y e s - Re q u e n a , 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 cont e n ti o n 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.

3 Case: 11-11131 Document: 00511982447 Page: 3 Date Filed: 09/11/2012