King v. Jeter

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this opinion should not be published and is not precedent except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
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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. § 2241

petition. 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.