United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-10723
Conference Calendar
SALVATORE COTTONE,
Petitioner-Appellant,
versus
COLE JETER, Warden, FCI-Fort Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-44
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Salvatore Cottone, federal prisoner # 23593-083, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus
petition, wherein he challenged the restitution ordered by the
sentencing court following his convictions for RICO violations,
retaliation against an informant, and conspiracy to distribute
cocaine. Specifically, Cottone complained that the restitution
order violated Apprendi v. New Jersey, 530 U.S. 466 (2000), Jones
v. United States, 526 U.S. 227 (1999), Blakely v. Washington,
*
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this opinion should not be published and is not precedent except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. 06-10723
-2-
542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220
(2005).
The district court found that Cottone could not rely on
§ 2241 to challenge the legality of his sentence because he
failed to satisfy 28 U.S.C. § 2255's savings clause. On appeal,
Cottone argues that the district court erred in dismissing his
§ 2241 petition because the Supreme Court’s decision in Dodd v.
United States, 545 U.S. 353 (2005), in conjunction with the
Antiterrorism and Effective Death Penalty Act, violates the
Suspension Clause.
We review “de novo a district court’s dismissal of a section
2241 petition on the pleadings.” Pack v. Yusuff, 218 F.3d 448,
451 (5th Cir. 2000). The district court lacked jurisdiction to
entertain Cottone’s § 2241 petition because his contentions
regarding restitution did not satisfy the “in custody”
requirement of § 2241. See § 2241(c); United States v. Hatten,
167 F.3d 884, 885 (5th Cir. 1999); United States v. Segler,
37 F.3d 1131, 1137-38 (5th Cir. 1994). Moreover, we have held
that claims based on Blakely and Booker do not satisfy the
savings clause of § 2255. Padilla v. United States, 416 F.3d
424, 426-27 (5th Cir. 2005).
The district court’s judgment dismissing Cottone’s § 2241
petition for lack of jurisdiction is AFFIRMED. The Government’s
motion to dismiss the appeal is DENIED, and its motion for
No. 06-10723
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summary affirmance is GRANTED. The Government’s motion for an
extension of time is DENIED as moot.