Posival v. Driver , 207 F. App'x 365 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 06-40191
Conference Calendar
DAVID EDWARD POSIVAL,
Petitioner-Appellant,
versus
WARDEN JOE D. DRIVER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CV-256
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
David Edward Posival, federal prisoner # 34233-079, appeals
from the denial of his 28 U.S.C. § 2241 petition, in which he
challenged his conviction for being a felon in possession of a
firearm. The district court determined that Posival’s claims
would be properly raised in a 28 U.S.C. § 2255 motion but that
construing the petition under § 2255 would render it successive
and unauthorized. The district court also held that Posival
could not proceed under § 2255’s savings clause.
*
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this opinion should not be published and is not precedent except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. 06-40191
-2-
Posival argues that the evidence was insufficient for a
sentencing enhancement based on a stolen firearm and that he
should be allowed to proceed under § 2255’s savings clause based
on United States v. Booker, 543 U.S. 220 (2005), and Blakely v.
Washington, 542 U.S. 296 (2004). He also asserts that Booker and
Blakely constitute an intervening change in the law, that his
trial and appellate counsel rendered ineffective assistance, and
that he is actually innocent. The district court properly
determined that Posival’s claims should be raised in a § 2255
motion and that such a motion would now be successive. See
Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000); United
States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).
Posival’s argument that he should be permitted to proceed under
the savings clause is unavailing in light of this court’s
decision in Padilla v. United States, 416 F.3d 424, 426-27 (5th
Cir. 2005).
AFFIRMED.