Whitmore v. Jeter

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 28, 2006

Charles R. Fulbruge III Clerk No. 05-10926 Conference Calendar

HAROLD E. WHITMORE,

Petitioner-Appellant,

versus

COLE JETER, Warden, Federal Medical Center, Fort Worth,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:05-CV-839 --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Harold E. Whitmore, federal prisoner # 24891-077, was

convicted in 1994 of drug-trafficking offenses and money

laundering, for which he received concurrent 240-month prison

terms. He appeals the district court’s dismissal of his

28 U.S.C. § 2241 habeas corpus petition, arguing that his

sentence was illegal because it was based on facts not submitted

to the jury and proved beyond a reasonable doubt, in violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Whitmore argues

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-10926 -2-

that his claims should be allowed to proceed under the savings

clause of 28 U.S.C. § 2255. Whitmore’s argument is unavailing

in light of this court’s decision in Padilla v. United States,

416 F.3d 424, 426-27 (5th Cir. 2005).

AFFIRMED.