IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2009
No. 08-40728
Summary Calendar Charles R. Fulbruge III
Clerk
SAMUEL PASQUAL EDMONDSON
Petitioner-Appellant
v.
UNITED STATES OF AMERICA
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:07-CV-261
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Samuel Pasqual Edmondson, federal prisoner # 05102-010, has filed a pro
se application for leave to proceed in forma pauperis (IFP) on appeal, following
the district court’s dismissal, for lack of jurisdiction, of his pro se 28 U.S.C. §
2241 habeas petition. That petition challenged the validity of his convictions for:
*
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should not be published and is not precedent except under the limited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.
conspiracy to possess with intent to distribute methamphetamine; and
possession with intent to distribute methamphetamine.
A movant for IFP on appeal must show: he is a pauper; and he will present
a nonfrivolous appellate issue. E.g., Jackson v. Dallas Police Dep’t, 811 F.2d 260,
261 (5th Cir. 1986). Edmondson cannot establish that he would raise a
nonfrivolous appellate issue.
Edmondson essentially maintains his claims fall within the savings clause
of 28 U.S.C. § 2255 because Zedner v. United States, 547 U.S. 489 (2006), should
apply retroactively to cases on collateral review. We may, however, consider a
§ 2241 petition attacking custody resulting from a federally-imposed sentence
only when the petitioner establishes that § 2255 is “inadequate or ineffective to
test the legality of his detention”. 28 U.S.C. § 2255(e); Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001). To show § 2255 was rendered inadequate or
ineffective in his case, Edmondson must show that his claim: (1) “is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense”; and (2) “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) (emphasis added).
Zedner dealt with issues relating to the Speedy Trial Act. See Zedner, 547
U.S. at 500-09; Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174. Because
Zedner does not establish that Edmondson was convicted of a nonexistent
offense, we need not determine whether Zedner is retroactive or whether his
claim was foreclosed when he filed his direct appeal or prior § 2255 motion.
Because Edmondson has not met the requirements for proceeding under
the savings clause, he has not established that he will raise a nonfrivolous
appellate issue. See Jackson, 811 F.2d at 261. Accordingly, Edmondson’s motion
to proceed in forma pauperis on appeal is DENIED; and his appeal is
2
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir.
1997); 5TH CIR. R. 42.2.
3