Israel Ortega, Sr. v. Bonita Mosley

618 F. App'x 221

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 6, 2015
• Docket: 14-60603
• Status: Unpublished

Opinion

PER CURIAM: *

Israel Martinez Ortega, Sr., federal prisoner # 09444-180, appeals the district court’s dismissal of his 28 U.S.C. § 2241 application, challenging the 420-month sentence imposed following his 2002 guilty plea conviction for conspiracy to import a controlled substance in violation of 21 U.S.C. § 963. Because Ortega is proceeding under § 2241, he need not obtain a certificate of appealability. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.2001).

A federal prisoner may use § 2241 to challenge the legality of his conviction or sentence if he can satisfy the requirements of the so-called “savings clause” of 28 U.S.C. § 2255. See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir.2001). In order to proceed under the savings clause, Ortega must raise a previously foreclosed claim that is based on a retroactively applicable Supreme Court decision establishing that he was convicted of a nonexistent offense. Id. at 904. In his opening brief, Ortega cites to Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). To the extent that he relies upon these decisions to make the showing required by Reyes-Requena, we have previously determined that the holdings from these decisions are not retroactively applicable. See United States v. Olvera, 775 F.3d 726, 730 (5th Cir.2015); Padilla v. United States, 416 F.3d 424, 427 (5th Cir.2005). Ortega does not otherwise challenge the district court’s determination that he failed to make the showing necessary to proceed under the savings clause. See Reyes-Requena, 243 F.3d at 904.

Accordingly, the district court’s judgment is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.