Salazar v. Dobre
Salazar v. Dobre
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-40905 Conference Calendar
EDUARDO DELGADO SALAZAR,
Petitioner-Appellant,
versus
JONATHAN DOBRE, Warden,
Respondent-Appellee.
-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-137 --------------------
February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Eduardo Delgado Salazar, federal prisoner # 66865-079,
appeals the district court’s dismissal of his
28 U.S.C. § 2241petition. He argues that he cannot bring a claim based on
Apprendi v. New Jersey,
530 U.S. 466, 490(2000), in a
28 U.S.C. § 2255motion because it would be barred by requirements for
filing a successive
28 U.S.C. § 2255motion. He argues that his
only remedy is to bring a
28 U.S.C. § 2241petition under the
savings clause of
28 U.S.C. § 2255. Salazar has not shown that
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-40905 -2-
the district court erred in dismissing his petition as he has not
shown that his Apprendi claim is “based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense.”
See Reyes-Requena v. United States,
243 F.3d 893, 900(5th Cir.
2001). Therefore, he has not shown that his claim falls within
the savings clause of
28 U.S.C. § 2255. Further, a prior
unsuccessful
28 U.S.C. § 2255motion or the inability to meet the
requirements for filing a second or successive
28 U.S.C. § 2255motion does not make
28 U.S.C. § 2255inadequate or ineffective.
See Tolliver v. Dobre,
211 F.3d 876, 877(5th Cir. 2000).
Salazar also argues that the district court’s dismissal of
his
28 U.S.C. § 2241petition violated his rights under the
Suspension Clause. Because he did not raise this claim in the
district court, review is limited to plain error. See Douglass
v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1428-29(5th Cir.
1996) (en banc); Robertson v. Plano City of Tex.,
70 F.3d 21, 23(5th Cir. 1995). The savings clause of
28 U.S.C. § 2255does not
violate the Suspension Clause. Reyes-Requena,
243 F.3d at 901n.19.
AFFIRMED.
Reference
- Status
- Unpublished