* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50206

Summary Calendar

GERALD LEO ROGERS

Petitioner-Appellant

v.

UNITED STATES PAROLE COMMISSION

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:07-CV-170

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Gerald Leo Rogers, federal prisoner # 12327-086, has moved to proceed in

forma pauperis (IFP) in his appeal of the district court’s denial of relief on his 28

U.S.C. § 2241 petition. By moving for IFP status, Rogers is challenging the

district court’s certification that his appeal is nottaken in good faith. See Baugh

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

United States Court of Appeals

Fifth Circuit

F I L E D

July 15, 2008

Charles R. Fulbruge III

Clerk
No. 08-50206

2

Rogers filed the § 2241 petition to challenge the revocation of his parole on

charges that he committed a criminal fraud violation. Rogers, who has two

previous criminal convictions, first argues that those convictions are invalid

because the courts in which he was convicted lacked jurisdiction and because the

Government lacked standing. Because his previous convictions are invalid,

Rogers contends, the United States Parole Commission (the Commission) lacks

authority over him.

A § 2241 petition that attacks errors that occurred at trial or sentencing

may be considered under the “savings clause” of 28 U.S.C. § 2255(e) if the

prisoner shows that the § 2255 remedy is “inadequate or ineffective to test the

legality of his detention.” Rogers, however, has not met his burden to show that

his claims satisfy the savings clause. See Wesson v. Penitentiary, Beaumont, TX,

305 F.3d 343, 347 (5th Cir. 2002); Reyes-Requena v. United States, 243 F.3d 893,

904 (5th Cir. 2001). 

Rogers also contends that his due process rights were violated at his

revocation hearing because he was denied the right to confront four adverse

witnesses. He asserts that the witnesses, who are Government agents, were

involved in the premature seizure of his company’s assets, and he alleges that

the actions of these witness caused investors in his company to lose five million

dollars.

A parolee who was denied due process must show that he was prejudiced

by the violation. Brecht v. Abrahamson, 507 U.S. 619, 637-39 (1993). He must

show that the due process violation had a substantial and injurious effect or

influence in determining the proceeding’s outcome. Williams v. Johnson, 171

F.3d 300, 307 (5th Cir. 1999). 

Rogers has not shown thatthe testimony of the four witnesses would have

been relevantto the Commission’s determination that he committed investment

fraud by, inter alia, making statements to investors that were misleading and

by failing to disclose material facts in securing investments. Because he has not
No. 08-50206

3

shown that the claimed due process violation had a substantial and injurious

effect or influence in determining the proceeding’s outcome, Rogers has failed to

make the required showing of prejudice. See Brecht, 507 U.S. at 637-39;

Williams, 171 F.3d at 307.

Rogers has not shown that the district court’s determination that his

appeal would be frivolous was incorrect. Accordingly, his appeal is dismissed as

frivolous, and his request to proceed IFP is denied. See Baugh, 117 F.3d at 202

n.24; 5th Cir. R. 42.2. 

Rogers has filed a motion seeking a stay of incarceration under Rule 18 of

the Federal Rules of Appellate Procedure. The Government has moved for leave

to file an out-of-time response to Rogers’ motion. The Government’s motion is

granted.

Because this court is not the initial judicial tribunal to consider Rogers’

claims regarding the Commission’s actions, he cannot obtain relief under FED.

R. APP. P. 18. See Tesfamichael v. Gonzales, 411 F.3d 169, 174 (5th Cir. 2005).

If Roger’s motion is instead considered as a motion for release pending appeal,

he likewise is not entitled to relief because he fails to demonstrate the existence

of exceptional circumstances. See United States v. Lacy, 643 F.2d 284, 285 (5th

Cir. 1981). Accordingly, Rogers’ motion is denied.

APPEAL DISMISSED; IFP MOTION DENIED; MOTION FOR LEAVE

TO FILE AN OUT-OF-TIME RESPONSE GRANTED; MOTION FOR STAY OF

INCARCERATION DENIED.