Coley v. Lappin, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41180
Conference Calendar
TERRY COLEY,
Petitioner-Appellant,
versus
HARLEY G. LAPPIN; WARDEN DAVID JUSTICE,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:04-CV-108
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Terry Coley was convicted of conspiracy to possess drugs
with intent to distribute and possession of drugs with intent to
distribute and sentenced to serve 188 months in prison and a
five-year term of supervised release. He filed a 28 U.S.C.
§ 2241 habeas corpus petition to challenge this conviction and
sentence, and he now appeals the district court’s dismissal of
his § 2241 petition. He argues that he should be permitted to
pursue § 2241 relief in accordance with the savings clause of

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No. 05-41180
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28 U.S.C. § 2255 because his fugitive status prevented him from
timely pursuing § 2255 relief. He also presents argument on the
merits of his sentencing claims.
Coley has not shown that the district court erred in
determining that his purported § 2241 petition was best construed
as a § 2255 motion over which the district court lacked
jurisdiction. See Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001); Cox v. Warden, Fed. Det. Ctr., 911 F.2d
1111, 1113 (5th Cir. 1990); Solsona v. Warden, F.C.I., 821 F.2d
1129, 1132 (5th Cir. 1987). Coley’s contention that he should be
permitted to proceed under § 2241 due to his prior status as a
fugitive is unpersuasive. The judgment of the district court is
AFFIRMED.

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