Diaz v. Dobre

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40407
Conference Calendar
CARLOS A. DIAZ,
Petitioner-Appellant,
versus
JONATHON DOBRE,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-45
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Carlos A. Diaz, federal prisoner #03767-078, appeals from
the dismissal with prejudice of his petition seeking relief under
28 U.S.C. § 2241. The district court held, because Diaz was
challenging errors that were alleged to have occurred during his
criminal proceedings, his claims must be raised in a motion filed
pursuant to 28 U.S.C. § 2255 and that Diaz had failed to show
that the savings clause of 28 U.S.C. § 2255 was applicable. Diaz
*
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that this opinion should not be published and is not precedent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. 02-40407
-2-
has failed to show on appeal that he is entitled to application
of the savings clause. Moreover, this court has recently held
that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply
retroactively to cases on collateral review and that an Apprendi
claim does not satisfy requirements for filing a 28 U.S.C. § 2241petition under the savings clause. See Wesson v. U.S.
Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).
Finally, any error committed by the district court in
failing to provide Diaz with notice that it was considering
dismissal of his petition and an opportunity to respond was
harmless under these circumstances. See United States v. Cullum,
47 F.3d 763, 765 (5th Cir. 1995).
Accordingly, the district court’s judgment is AFFIRMED.