### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 40364 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appell ee

v. JAVIER HUGO PEREZ, also known as El Vecino , Defendant

- Appell ant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:09

- CR

- 2897

Before GRAVES, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * Javier Hugo Perez, federal prisoner # 31562

- 2 79, has filed a motion for leave to proceed in forma pauperis (IFP) on appeal from the district court’s denial of his post

- co nviction motion to dismiss the indictment. The district court denied Perez’s IFP motion and certified that the appeal was not taken in good faith. B y moving for IFP status, Perez is challenging the district court’s certification. See Baugh v. Taylor , 11 7 F.3d 197, 202 (5th Cir. 1997).

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 30, 2015 Lyle W. Cayce Clerk Case: 15-40364 Document: 00513136335 Page: 1 Date Filed: 07/30/2015No. 15

- 40364

2 Perez must have statutory authority for the filing of his motion to dismiss the indictment. See Veldhoen v. United States Coast Guard , 3 5 F.3d 222, 225 (5th Cir. 1994). Ha d Perez’s motion been construed as a 28 U.S.C. § 2 255 motion, the district court would have lacked jurisdiction to consider it because he had previously filed a § 2255 motion and we have not authorized him to file a successive § 2255 motion. See Hooker v. Sivley , 187 F.3d 680, 681

- 82 (5th Cir. 1999); 28 U.S.C. § 2244(b)(3)(A). Further, Perez’s jurisdictional challenge to the indictment was not a claim “ (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offe nse and (ii) that was foreclosed by circuit law at the time when the claim should hav e been raised in the petitioner’ s trial, appeal, or first § 2255 motion ,” and c onsequently, his motion could not have been construed as a 28 U.S.C. § 2241 petition brought via the savings clause of § 2255. See Reyes

- Requena v. United States , 243 F.3d 893, 904 (5th Cir. 2001). Although 18 U.S.C. § 3582(c) allows a district court to modify a sentence under certain narrow circumstances, none of those circumstances were implicated by Perez’ s motion to dismiss the indictment . See § 3582(c). He was also precluded from obtaining relief under 18 U.S.C. § 3742, as relief thereunder is reserved only for direct appeals. See United States v. Early , 27 F.3d 140, 142 (5th Cir. 1 994). Finally, Perez’s motion did not qualify as a writ of coram nobis or a writ of audita querela. See United States v. Miller , 599 F.3d 484, 489 (5th Cir. 2010); Jimenez v. Trominski , 9 1 F.3d 767, 768 (5th Cir. 1996). Perez’s motion to dismiss the indi ctment did not fall into a recognized
cate gory of post

- conviction motions, and therefore it was, in essence, “ a meaningless, unauthorized motion ” which the district court was without jurisdiction to entertain. See Early , 27 F.3d at 142. B ecause he has fa iled to Case: 15-40364 Document: 00513136335 Page: 2 Date Filed: 07/30/2015No. 15

- 40364

3 show that the instant appeal involves legal points arguable on their merits, see Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983), Perez’s IFP motion is denied, and his appeal is dismissed as frivolous. See Baugh , 117 F.3d at 202 & n.24; 5 TH C IR

. R . 42.2. MOTION DENIED; APPEAL DIS MISSED. Case: 15-40364 Document: 00513136335 Page: 3 Date Filed: 07/30/2015