Case: 20-30663 Document: 00515828082 Page: 1 Date Filed: 04/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 20, 2021
No. 20-30663
Lyle W. Cayce
Summary Calendar Clerk
Dwayne Palmer,
Petitioner—Appellant,
versus
Calvin Johnson, Warden, Federal Correctional Complex Pollock,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:20-CV-761
Before Stewart, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Dwayne Palmer, federal prisoner # 57698-054, was sentenced to 420
months of imprisonment by the United States District Court for the
Southern District of New York after being convicted of conspiracy to
distribute and possess with intent to distribute 100 kilograms or more of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-30663 Document: 00515828082 Page: 2 Date Filed: 04/20/2021
No. 20-30663
marijuana, murder in connection with a drug conspiracy, use of a firearm
during a drug trafficking offense, and being an alien in possession of a firearm.
Palmer appealed, and the Second Circuit affirmed his convictions and
sentence. United States v. Brown, 374 F. App’x 208 (2d Cir. 2010). He has
also filed an unsuccessful 28 U.S.C. § 2255 motion. Palmer v. United States,
No. 11-CV-8187, 2014 WL 6863492 (S.D.N.Y. Dec. 5, 2014).
Palmer then filed a 28 U.S.C. § 2241 petition, arguing that he is
actually innocent of being an alien in possession of a firearm in light of the
Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).
The district court dismissed the petition after determining that Palmer failed
to satisfy the requirements of the savings clause of § 2255(e). He moved for
leave to proceed in forma pauperis (IFP) on appeal from that judgment, but
the district court denied the motion. Palmer now moves this court for leave
to proceed IFP on appeal.
Pursuant to the Federal Rules of Appellate Procedure, this court may
entertain a motion to proceed IFP when the litigant has been denied leave to
proceed IFP by the district court. Fed. R. App. P. 24(a)(5). To proceed
IFP, the litigant must demonstrate both financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th
Cir. 1982). If the appeal is frivolous, we may dismiss it sua sponte. 5th Cir.
R. 42.2.
In general, an attack on the validity of a conviction or sentence must
be brought under § 2255 as opposed to § 2241. See Padilla v. United States,
416 F.3d 424, 425-26 (5th Cir. 2005). However, a federal prisoner may use
§ 2241 to challenge his conviction or sentence under § 2255(e)’s savings
clause if he demonstrates that § 2255 is “inadequate or ineffective to test the
legality of his detention.” Santillana v. Upton, 846 F.3d 779, 782 (5th Cir.
2017) (quoting § 2255(e)). To proceed under the savings clause, a petitioner
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No. 20-30663
must demonstrate that his claim (1) is based on a retroactively applicable
Supreme Court decision; (2) was foreclosed by circuit law at the time when
it should have been raised; and (3) establishes that he was convicted of a
nonexistent offense. Reyes-Requena v. United States, 243 F.3d 893, 904 (5th
Cir. 2001).
Regardless of whether Rehaif applies retroactively to cases on
collateral review, Palmer has failed to demonstrate that he was convicted of
a nonexistent offense. Despite his assertions to the contrary, “[o]ur cases
applying Rehaif have not required the Government to prove knowledge of the
statutory prohibition contained in § 922(g).” United States v. Trevino, 989
F.3d 402. 405 (5th Cir. 2021). Instead, the Government must prove only the
defendant knew that he possessed a firearm and that he knew of his relevant
status when he possessed the firearm. Id. Because Palmer does not argue
that he was unaware of his immigration status, he has failed to demonstrate
that he was entitled to proceed under § 2255(e)’s savings clause. See Reyes-
Requena, 243 F.3d at 904.
Because Palmer has not demonstrated a nonfrivolous issue for appeal,
the IFP motion is DENIED and the appeal is DISMISSED as frivolous.
See Fed. R. App. P. 24(a); 5th Cir. R. 42.2.
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