IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50829

Summary Calendar

LINDSEY KENT SPRINGER,

Petitioner-Appellant

v.

J. S. WILLIS, Warden,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CV-191

Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Lindsey Kent Springer moves for leave to proceed in forma pauperis 

(IFP) in his appeal from the dismissal of his 28 U.S.C. § 2241 petition, in which 

he challenged his convictions for conspiracy to defraud the United States, tax 

evasion, and failure to file tax returns. A movant seeking leave to proceed IFP 

on appeal must demonstrate that he is a pauper and that he will raise a 

* 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

June 24, 2016

Lyle W. Cayce

Clerk

 

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No. 15-50829

nonfrivolous issue on appeal. See 28 U.S.C. § 1915(a)(1); Carson v. Polley, 689 

F.2d 562, 586 (5th Cir. 1982). Springer fails this second requirement. 

In support of his IFP motion, Springer argues the same claims raised in 

his § 2241 petition, specifically that the trial court misunderstood that the tax 

evasion statute, 26 U.S.C. § 7201, proscribes two separate crimes. He argues 

that the Supreme Court’s recent decision in Kawashima v. Holder, 132 S. Ct. 

1166 (2012), enunciated this standard and is applicable to his case because the 

opinion was issued before Springer’s conviction became final. Springer avers 

that the grand jury indicted him on one of the crimes, but the trial court 

instructed the jury on the other crime.

The savings clause under 28 U.S.C. § 2255 allows a federal prisoner to 

challenge his conviction under § 2241 if the remedies provided under § 2255 

are “inadequate or ineffective to test the legality of his detention.” A petitioner 

seeking to establish that his § 2255 remedy was inadequate or ineffective must 

make a claim (i) “based on a retroactively applicable Supreme Court decision 

which establishes that the petitioner may have been convicted of a nonexistent 

offense” that (ii) “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.” 

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

Kawashima does not establish that Springer was convicted of a 

nonexistent offense. In that decision, the Supreme Court merely quoted its 

earlier decision in Sansone v. United States, 380 U.S. 343 (1965), when it 

explained that “§ 7201 includes two offenses: ‘the offense of willfully 

attempting to evade or defeat the assessment of a tax as well as the offense of 

willfully attempting to evade or defeat the payment of a tax.’” Kawashima, 132 

S. Ct. at 1175 (quoting Sansone, 380 U.S. at 354). Springer has not shown that 

there is a Supreme Court decision with retroactive effect on his claim or that 

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his claim was precluded by established circuit law at the time of his trial, 

appeal, or initial § 2255 motion. See Reyes-Requena, 243 F.3d at 904.

Springer has not met the burden of showing that the § 2255 remedy is 

inadequate or ineffective; therefore, the district court did not err in dismissing 

his § 2241 petition. See § 2255(e). Accordingly, Springer’s request for leave to 

proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous. 

See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); see also 5TH CIR.

R. 42.2.

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