King v. Jeter , 158 F. App'x 571 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 05-10370
Conference Calendar
WILLIE FRANK KING,
Petitioner-Appellant,
versus
COLE JETER, Warden,
Federal Medical Center, Fort Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-600
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Willie Frank King, federal prisoner # 29510-077, seeks leave
to proceed in forma pauperis (IFP) to appeal the dismissal of his
28 U.S.C. § 2241 petition challenging the 328-month sentence he
received for various drug-trafficking offenses. The district
court denied IFP, certifying that the appeal was not taken in
good faith. By moving for leave to proceed IFP, King is
challenging the district court’s certification. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P.
*
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this opinion should not be published and is not precedent except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. 05-10370
-2-
24(a)(5). However, King has not demonstrated any nonfrivolous
ground for appeal.
King argues that his sentence is invalid in light of Blakely
v. Washington, 124 S. Ct. 2531 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005). As the district court determined,
because King’s petition challenges errors that occurred at
sentencing, it should not been brought as a 28 U.S.C. § 2241petition. See Padilla v. United States, 416 F.3d 424, 426-27
(5th Cir. 2005). King’s argument that he is entitled to proceed
under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C.
§ 2255 because relief under that section is “inadequate or
ineffective” is unavailing. Id. at 427 (holding that a claim
under Booker does not fit within the savings clause of 28 U.S.C.
§ 2255).
The IFP motion is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.