Johnson v. Kastner

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 11, 2008 No. 07-40935 Summary Calendar Charles R. Fulbruge III Clerk STEVIE WAYNE JOHNSON Petitioner-Appellant v. PAUL KASTNER Respondent-Appellee Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:06-CV-175 Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Stevie Wayne Johnson, Texas prisoner # 33435-077, was convicted of conspiring to possess cocaine with intent to distribute and possessing cocaine with intent to distribute. He was sentenced to serve 240 months in prison. He filed a 28 U.S.C. § 2241 habeas corpus petition to challenge his convictions, and he now appeals the district court’s dismissal of his § 2241 petition. Johnson argues that his judgment of conviction is void and he is entitled to § 2241 relief because he was prosecuted under the wrong indictment. He further argues that * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40935 28 U.S.C. § 2255 relief does not provide an adequate remedy to address this claim, and he contends that he is actually innocent. Johnson moves this court to take judicial notice of facts concerning the errors in his judgment and the indictments. Johnson has not shown that the district court erred in determining that his purported § 2241 petition was best construed as an unauthorized successive § 2255 motion. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Johnson likewise has not shown that he should be permitted to proceed under the savings clause of § 2255. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000). The judgment of the district court is AFFIRMED. All outstanding motions are DENIED. 2