Don Harper v. John Fox, et al

Filing

UNPUBLISHED OPINION FILED. [09-41234 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/08/2010; denying motion to remand case filed by Appellant Mr. Don A. Harper [6452140-2] [09-41234]

Don Harper v. John Fox, et al

Doc. 0

Case: 09-41234

Document: 00511235774

Page: 1

Date Filed: 09/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41234 S u m m a r y Calendar September 16, 2010 Lyle W. Cayce Clerk

D O N A. HARPER, P e t it io n e r - Appellant v. J O H N B. FOX, Warden; UNITED STATES ATTORNEY'S OFFICE, R e s p o n d e n t s - Appellees

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:09-CV-840

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* D o n A. Harper, federal prisoner # 24496-013, appeals the district court's d is m is s a l of his 28 U.S.C. § 2241 petition, in which he challenged his convictions fo r armed bank robbery and for using or carrying a firearm during the robbery. T h e district court determined that Harper could not proceed under Section 2241 b e c a u s e his claims did not satisfy the requirements of the "savings clause" of 2 8 U.S.C. § 2255(e). Harper's brief is entirely devoted to the merits of his claims

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 09-41234

Document: 00511235774 Page: 2 No. 09-41234

Date Filed: 09/16/2010

fo r relief. Harper has not argued, much less shown, that he is entitled to proceed u n d e r Section 2241 based on the savings clause of Section 2255(e). See ReyesR e q u e n a v. United States, 243 F.3d 893, 900-01, 904 (5th Cir. 2001). Harper has w a iv e d the issue by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5 t h Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 7 4 8 (5th Cir. 1987). The judgment of the district court is AFFIRMED. Harper's e m e r g e n c y motion for affirmative relief is DENIED.

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