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158 F. App'x 571

King v. Jeter

U.S. Courts of Appeals

Decided December 14, 2005

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U.S. Courts of Appeals · decided 2005-12-14

Applies 28 U.S.C. § 2241 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on United States v. Booker · Blakely v. Washington · Baugh v. Taylor

Decided 2005-12-14

PER CURIAM: *

¶1 Willie Frank King, federal prisoner # 29510-077, seeks leave to proceed in for-ma pauperis (IFP) to appeal the dismissal of his 28 U.S.C. § 2241 petition challenging the 328-month sentence he received for various drug-trafficking offenses. The district court denied IFP, certifying that the appeal was not taken in good faith. By moving for leave to proceed IFP, King is challenging the district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); Fed. R.App. P. 24(a)(5). However, King has not demonstrated any nonfrivolous ground for appeal.

¶2 King argues that his sentence is invalid in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) , and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) . As the district court determined, because King’s petition challenges errors that occurred at sentencing, it should not been brought as a 28 U.S.C. § 2241 petition. See Padilla v. United States, 416 F.3d 424, 426-27 (5th Cir.2005). King’s argument that he is entitled to proceed *572 under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C. § 2255 because relief under that section is “inadequate or ineffective” is unavailing. Id. at 427 (holding that a claim under Booker does not fit within the savings clause of 28 U.S.C. § 2255).

¶3 The IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5th Cir. R. 42.2.

*

¶4 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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