IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 06-40908
Conference Calendar Charles R. Fulbruge III
Clerk
ROBERT JESSE SMALLWOOD
Petitioner-Appellant
v.
UNITED STATES OF AMERICA
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:06-CV-28
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Jesse Smallwood, federal prisoner # 42708-080, filed this petition
pursuant to 28 U.S.C. § 2241. He argues that: (1) his sentence is
unconstitutional in light of United States v. Booker, 543 U.S. 220 (2005), Blakely
v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466
(2000); and (2) that a 28 U.S.C. § 2255 motion is inadequate and ineffective to
test the legality of his detention.
*
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should not be published and is not precedent except under the limited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. 06-40908
Section 2255 provides the primary means of collaterally attacking a
federal sentence based on errors that occurred at or prior to sentencing. Cox v.
Warden, 911 F.2d 1111, 1113 (5th Cir. 1990). A § 2241 petition attacking the
imposition of a federally imposed sentence may be considered only where the
petitioner establishes that § 2255 is “inadequate or ineffective to test the legality
of his detention.” Id. (internal quotation and citations omitted). Smallwood
bears the burden of showing that a § 2255 motion is an inadequate vehicle in
which to bring his claims into federal court. McGhee v. Hanberry, 604 F.2d 9, 10
(5th Cir. 1979). Claims based on Apprendi, Blakely, and Booker do not fall under
the savings clause of § 2255. Padilla v. United States, 416 F.3d 424, 426-27 (5th
Cir. 2005); Wesson v. U.S. Penitentiary Beaumont, Tx., 305 F.3d 343, 346-47 (5th
Cir. 2002). Therefore, the district court did not err in dismissing Smallwood’s
§ 2241 petition. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
Accordingly, the judgment of the district court is AFFIRMED.
2