Salazar v. Dobre

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 22, 2002
• Docket: 01-40905
• Status: Unpublished

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. § 2241

petition. 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.

§ 2255 motion because it would be barred by requirements for

filing a successive 28 U.S.C. § 2255 motion. He argues that his

only remedy is to bring a 28 U.S.C. § 2241 petition 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. § 2255 motion or the inability to meet the

requirements for filing a second or successive 28 U.S.C. § 2255

motion does not make 28 U.S.C. § 2255 inadequate 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. § 2241 petition 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. § 2255 does not

violate the Suspension Clause. Reyes-Requena, 243 F.3d at 901

n.19.

AFFIRMED.