Diaz v. Dobre

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 4, 2002
• Docket: 02-40407
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40407 Conference Calendar

CARLOS A. DIAZ,

Petitioner-Appellant,

versus

JONATHON DOBRE,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:02-CV-45 -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Carlos A. Diaz, federal prisoner #03767-078, appeals from

the dismissal with prejudice of his petition seeking relief under

28 U.S.C. § 2241. The district court held, because Diaz was

challenging errors that were alleged to have occurred during his

criminal proceedings, his claims must be raised in a motion filed

pursuant to 28 U.S.C. § 2255 and that Diaz had failed to show

that the savings clause of 28 U.S.C. § 2255 was applicable. Diaz

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40407 -2-

has failed to show on appeal that he is entitled to application

of the savings clause. Moreover, this court has recently held

that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply

retroactively to cases on collateral review and that an Apprendi

claim does not satisfy requirements for filing a 28 U.S.C. § 2241

petition under the savings clause. See Wesson v. U.S.

Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).

Finally, any error committed by the district court in

failing to provide Diaz with notice that it was considering

dismissal of his petition and an opportunity to respond was

harmless under these circumstances. See United States v. Cullum,

47 F.3d 763, 765 (5th Cir. 1995).

Accordingly, the district court’s judgment is AFFIRMED.