Carlos Gonzalez v. J. S. Willis, Warden


UNPUBLISHED OPINION FILED. [16-50141 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 06/15/2017 [16-50141]

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Case: 16-50141 Document: 00513964496 Page: 1 Date Filed: 04/24/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-50141 Summary Calendar United States Court of Appeals Fifth Circuit FILED April 24, 2017 Lyle W. Cayce Clerk CARLOS PAUL GONZALEZ, Petitioner-Appellant v. J. S. WILLIS, Warden, Respondent-Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 3:15-CV-402 Before KING, DENNIS, and COSTA, Circuit Judges. PER CURIAM:* Carlos Paul Gonzalez, federal prisoner # 82609-179, appeals the denial of his 28 U.S.C. § 2241 petition challenging his 135-month sentence for conspiring to commit mail and wire fraud. He argues that the district court erred by dismissing his claims that the court lacked subject matter jurisdiction over his case and that his sentence violated his ex post facto rights. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-50141 Document: 00513964496 Page: 2 Date Filed: 04/24/2017 No. 16-50141 We review de novo the dismissal of a § 2241 petition. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Generally, claims of trial or sentencing errors are not properly raised in a § 2241 petition. Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). However, a § 2241 petition that attacks a federal sentence may be considered if the petitioner shows that § 2255 is “inadequate or ineffective to test the legality of his detention.” § 2255(e). To satisfy this “savings clause,” the petitioner must show that the claims are “based on a retroactively applicable Supreme Court decision which establishes that petitioner may have been convicted of a nonexistent offense,” and that the claims were previously “foreclosed by circuit law.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). As the district court correctly determined, Gonzalez has failed to make such a showing. Contrary to Gonzalez’s assertion, the denial of his prior § 2255 motion does not, in and of itself, establish that § 2255 relief is inadequate. See Pack, 218 F.3d at 452-53. Nor does Peugh v. United States, 133 S. Ct. 2072, 2078 (2013), which addressed an application of the United States Sentencing Guidelines, establish that Gonzalez was convicted of a nonexistent offense. See Reyes-Requena, 243 F.3d at 904. The judgment of the district court is AFFIRMED. 2

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