                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-40130
                          Conference Calendar


BERNARD J. DOLENZ,

                                      Petitioner-Appellant,

versus

R.D. MILES, Warden,

                                      Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 1:03-CV-1420
                        --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Bernard J. Dolenz, federal prisoner # 31480-077, filed an

action in the district court invoking 28 U.S.C. § 2241.         Because

Dolenz’s action attacked the legality of the conviction and

sentence for mail fraud, the district court construed the action

as a 28 U.S.C. § 2255 motion and dismissed it as an unauthorized

successive § 2255 motion.    Dolenz has appealed the judgment and

the district court’s order denying Dolenz’s motion under FED. R.

CIV. P. 59(e).



     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-40130
                                - 2 -

Dolenz’s contention that the trial court lacked jurisdiction

because of defects in the indictment is foreclosed by United

States v. Cotton, 535 U.S. 625 (2002).     See Wesson v. United

States Penitentiary Beaumont, Tex., 305 F.3d 343, 346 (5th Cir.

2002).   Dolenz has not shown that the savings clause of § 2255

applies to his claim of actual innocence.     See id.; Reyes-Requena

v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

     Dolenz asserts for the first time on appeal that his

sentence is illegal in light of Blakely v. Washington, 542 U.S.

296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

This argument implicates the Court’s decision in United States v.

Booker, 543 U.S. 220 (2005).   Booker claims do not fall under the

savings clause of § 2255.   See Padilla v. United States, 416 F.3d

424, 427 (5th Cir. 2005); see also Wesson, 305 F.3d at 348.

     Dolenz’s contention that the savings clause violates the

Suspension Clause of the United States Constitution is

foreclosed.   See Wesson, 305 F.3d at 347.

     Because Dolenz has not shown that the district court erred

in determining that he could not assert his claims in a § 2241

proceeding under the savings clause of § 2255, Dolenz’s

contentions that his restitution order and prison sentence

violate the constitutional prohibition against cruel and unusual

punishment and that he received ineffective assistance of counsel

have not been considered.   The judgment is affirmed.   Because

Dolenz has not shown that the interests of justice require
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                              - 3 -

appointment of counsel, see Schwander v. Blackburn, 750 F.2d 494,

502 (5th Cir. 1985), his motion for appointment of counsel is

denied.

     AFFIRMED; MOTION DENIED.
