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100 kilograms or more of * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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, …
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