Villa-Yanez v. Morris

* 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this opinion should not be published and is not precedent except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
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41207
Conference Calendar
JOSE VILLA-YANEZ,
Petitioner-Appellant,
versus
STEVE MORRIS, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-340
--------------------
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Villa-Yanez (Villa), federal prisoner # 05551-085, has
appealed the dismissal of his 28 U.S.C. § 2241 petition
challenging his 1997 conviction of conspiracy to possess with
intent to distribute cocaine and 240-month term of imprisonment.
Villa contends that his sentence was unconstitutional in light of
Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005), and that he should be permitted to
assert his Booker claim in a § 2241 proceeding under the savings

-- 1 of 2 --

No. 05-41207
-2-
clause of 28 U.S.C. § 2255. Because Blakely and Booker are not
retroactively applicable to cases on collateral review, Villa
cannot show that he should be permitted to assert his claims
under the savings clause of § 2255. See Padilla v. United
States, 416 F.3d 424, 426-27 (5th Cir. 2005); Reyes-Requena v.
United States, 243 F.3d 893, 904 (5th Cir. 2001).
The district court’s judgment is AFFIRMED.

-- 2 of 2 --