McNairy v. Joslin

* 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this opinion should not be published and is not precedent except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
December 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10887
Conference Calendar
DERRICK MCNAIRY,
Petitioner-Appellant,
versus
DAN JOSLIN, WARDEN, FEDERAL CORRECTIONAL INSTITUTION SEAGOVILLE,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-1166
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Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Derrick McNairy, federal prisoner # 33456-077, was convicted
of possession of cocaine base with intent to distribute and
sentenced to serve 15 years in prison. He filed a 28 U.S.C.
§ 2241 habeas corpus petition to challenge his 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 28 U.S.C. § 2255
because the remedy under § 2255 is inadequate and because he is
actually innocent of his sentence. He relies on United States v.

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No. 05-10887
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Booker, 543 U.S. 220 (2005), in support of his substantive
sentencing claims.
McNairy has not shown that the district court erred in
determining that his purported § 2241 petition was best construed
as an unauthorized successive § 2255 motion. See Tolliver v.
Dobre, 211 F.3d 876, 877 (5th Cir. 2000); Cox v. Warden, Fed.
Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). McNairy likewise
has not shown that he should be permitted to proceed under the
savings clause of § 2255. See Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448,
452-53 (5th Cir. 2000). The judgment of the district court is
AFFIRMED.

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