Gonzalez v. Morris

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2007
Charles R. Fulbruge III
Clerk
No. 05-41129
Summary Calendar
MARCOS GONZALEZ,
Petitioner-Appellant,
versus
STEVE MORRIS, Warden
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-339
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
Marcos Gonzalez, federal prisoner # 65613-079, appeals the
district court’s denial of his 28 U.S.C. § 2241 habeas petition.
Gonzalez was convicted and sentenced in the Southern District of
Texas in 1995 for possession of cocaine with intent to distribute
and for attempting to conduct a financial transaction with the
proceeds of an unlawful activity. Gonzalez challenges the
*
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opinion should not be published and is not precedent except under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.
constitutionality of his conviction and sentence in light of
Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005).
The errors asserted by Gonzalez may not be raised in a section
2241 petition unless they arise under the savings clause of 28
U.S.C. § 2255. See Padilla v. United States, 416 F.3d 424, 426-27
(5th Cir. 2005). Because Gonzalez’s claim is not based on a
retroactively applicable Supreme Court decision which establishes
that he may have been convicted of a nonexistent offense, see
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001),
the district court properly dismissed his section 2241 petition.
See Padilla, 416 F.3d at 427.
Alternatively, Gonzalez seeks authorization to file a
successive section 2255 motion. The district court did not
transfer this case to this court for a determination whether a
successive section 2255 motion should be allowed. See In re Epps,
127 F.3d 364, 364-65 (5th Cir. 1997). We decline to construe
Gonzalez’s appeal from the dismissal of his section 2241 petition
in the alternative as a motion for authorization to file a
successive section 2255 application.
Finally, Gonzalez argues that the denial of relief would
amount to an unconstitutional suspension of habeas corpus, as
prohibited by U.S. CONST. art. I, § 9, cl. 2. We have previously
rejected that argument. See Wesson v. U.S. Penitentiary Beaumont,
2
Tx, 305 F.3d 343, 346-47 (5th Cir. 2002).
The district court’s judgment is
AFFIRMED.
3