IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40364

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER HUGO PEREZ, also known as El Vecino,

Defendant-Appellant

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 # 31562-279, has filed a motion for 

leave to proceed in forma pauperis (IFP) on appeal from the district court’s 

denial of his post-conviction motion to dismiss the indictment. The district 

court denied Perez’s IFP motion and certified that the appeal was not taken in 

good faith. By moving for IFP status, Perez is challenging the district court’s 

certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

 

* 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

July 30, 2015

Lyle W. Cayce

Clerk

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No. 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, 35 F.3d 

222, 225 (5th Cir. 1994). Had Perez’s motion been construed as a 28 U.S.C. 

§ 2255 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 offense and (ii) that was foreclosed by 

circuit law at the time when the claim should have been raised in the 

petitioner’s trial, appeal, or first § 2255 motion,” and consequently, 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. 1994). 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, 91 F.3d 767, 768 (5th Cir. 1996).

Perez’s motion to dismiss the indictment did not fall into a recognized 

category 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. Because he has failed to 

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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; 5TH CIR. R. 42.2.

MOTION DENIED; APPEAL DISMISSED.

 Case: 15-40364 Document: 00513136335 Page: 3 Date Filed: 07/30/2015