United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-50482
Conference Calendar
ROBERT LOPEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CV-124
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Lopez, federal prisoner # 28088-180, seeks leave to
proceed in forma pauperis (IFP) to appeal the dismissal of his
28 U.S.C. § 2241 petition challenging his conviction and sentence
for mail fraud. The district court denied IFP, certifying that
the appeal was not taken in good faith. By moving for leave to
proceed IFP, Lopez is challenging the district court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); FED. R. APP. P. 24(a).
*
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this opinion should not be published and is not precedent except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. 05-50482
-2-
Because Lopez seeks to challenge his conviction and alleged
sentencing errors, a 28 U.S.C. § 2255 motion was the appropriate
vehicle to raise the claims. See Padilla v. United States, 416
F.3d 424, 425-26 (5th Cir. 2005). Lopez does not argue that the
remedy provided under § 2255 is inadequate or ineffective to test
the legality of his detention. See id. He therefore has not
established that his claims may be entertained under the savings
clause of § 2255. See Wesson v. U.S. Penitentiary Beaumont, TX,
305 F.3d 343, 347 (5th Cir. 2002). Additionally, to the extent
that Lopez is attempting to assert a Booker claim in his § 2241
petition, Booker does not fall within § 2255's savings clause
because it is not retroactively applicable to cases on collateral
review. Padilla, 416 F.3d at 426-27. The district court thus
did not err in denying Lopez’s § 2241 application.
Lopez has not demonstrated any nonfrivolous ground for
appeal. Accordingly, his IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5TH CIR.
R. 42.2.