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283 F. App'x 218

Lampton v. Menifee

U.S. Courts of Appeals

Decided June 19, 2008

U.S. Courts of Appeals · decided 2008-06-19

Applies 21 U.S.C. § 841 (§ 401 of the Controlled Substances Act) · 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 Lopez v. Gonzales · Padilla v. United States

Decided 2008-06-19

PER CURIAM: *

¶1 Billy Lampton, federal prisoner #25078-084, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging the sentence imposed following his conviction for distribution of heroin, fraudulent use of a telecommunications instrument, and engaging in a continuing criminal enterprise. Lampton argues that the prior Louisiana felony convictions used to enhance his sentence under 21 U.S.C. § 841(b)(1) were insufficient to support the enhancement under Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), because the convictions would have been misdemeanor convictions under federal law. He maintains that Lopez is retroactively applicable. He asserts that his claim is cognizable in a § 2241 petition under the savings clause of 28 U.S.C. § 2255(e) because it shows that he is actually innocent of the sentence enhancement. As Lampton is challenging only his sentence and not his conviction, his claim does not fall within the savings clause of § 2255(e) and is not cognizable in a § 2241 petition. See Padilla v. United States, 416 F.3d 424, 427 (5th Cir.2005).

¶2 AFFIRMED.

*

¶3 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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