United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-11291
Conference Calendar
ROBERTO MARTINEZ,
Petitioner-Appellant,
versus
DAN JOSLIN,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-636
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Roberto Martinez, federal prisoner #28733-077, seeks leave
to proceed in forma pauperis (IFP) to appeal the dismissal of his
28 U.S.C. § 2241 petition challenging the sentence he received
for conspiracy to possess and distribute methamphetamine. The
district court denied IFP, certifying that the appeal was not
taken in good faith. By moving for leave to proceed IFP,
Martinez is challenging the district court’s certification
decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
*
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this opinion should not be published and is not precedent except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. 05-11291
-2-
1997); FED. R. APP. P. 24(a)(5). However, Martinez has not
demonstrated any nonfrivolous ground for appeal.
Martinez argues that his sentence is invalid in light of
Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005). As the district court determined,
because Martinez’s petition challenges errors that occurred at
sentencing, it should not have been brought as a § 2241 petition.
See Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir.
2005). Martinez’s argument that he is entitled to proceed under
§ 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 § 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.