Dolenz v. Miles , 186 F. App'x 475 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 04-40130
Conference Calendar
BERNARD J. DOLENZ,
Petitioner-Appellant,
versus
R.D. MILES, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-1420
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Bernard J. Dolenz, federal prisoner # 31480-077, filed an
action in the district court invoking 28 U.S.C. § 2241. Because
Dolenz’s action attacked the legality of the conviction and
sentence for mail fraud, the district court construed the action
as a 28 U.S.C. § 2255 motion and dismissed it as an unauthorized
successive § 2255 motion. Dolenz has appealed the judgment and
the district court’s order denying Dolenz’s motion under FED. R.
CIV. P. 59(e).
*
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this opinion should not be published and is not precedent except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. 04-40130
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Dolenz’s contention that the trial court lacked jurisdiction
because of defects in the indictment is foreclosed by United
States v. Cotton, 535 U.S. 625 (2002). See Wesson v. United
States Penitentiary Beaumont, Tex., 305 F.3d 343, 346 (5th Cir.
2002). Dolenz has not shown that the savings clause of § 2255
applies to his claim of actual innocence. See id.; Reyes-Requena
v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Dolenz asserts for the first time on appeal that his
sentence is illegal in light of Blakely v. Washington, 542 U.S.
296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
This argument implicates the Court’s decision in United States v.
Booker, 543 U.S. 220 (2005). Booker claims do not fall under the
savings clause of § 2255. See Padilla v. United States, 416 F.3d
424, 427 (5th Cir. 2005); see also Wesson, 305 F.3d at 348.
Dolenz’s contention that the savings clause violates the
Suspension Clause of the United States Constitution is
foreclosed. See Wesson, 305 F.3d at 347.
Because Dolenz has not shown that the district court erred
in determining that he could not assert his claims in a § 2241
proceeding under the savings clause of § 2255, Dolenz’s
contentions that his restitution order and prison sentence
violate the constitutional prohibition against cruel and unusual
punishment and that he received ineffective assistance of counsel
have not been considered. The judgment is affirmed. Because
Dolenz has not shown that the interests of justice require
No. 04-40130
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appointment of counsel, see Schwander v. Blackburn, 750 F.2d 494,
502 (5th Cir. 1985), his motion for appointment of counsel is
denied.
AFFIRMED; MOTION DENIED.