     Case: 09-30539     Document: 00511048846          Page: 1    Date Filed: 03/11/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 11, 2010
                                     No. 09-30539
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DAVID E. KATES,

                                                   Petitioner-Appellant

v.

JOE KEFFER, Warden, United States Penitentiary,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-CV-401


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        David E. Kates, federal prisoner # 30428-077, is serving a 360-month
sentence for possession with intent to distribute cocaine base.                   This court
affirmed Kates’s conviction and sentence. United States v. Kates, 174 F.3d 580,
581-84 (5th Cir. 1999). Kates filed a petition for habeas corpus relief under 28
U.S.C. § 2241 asserting that the Government had violated the prohibition
against double jeopardy by using his prior convictions to enhance the penalty for
the instant offense and that he was actually innocent of being a career offender.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30539    Document: 00511048846 Page: 2         Date Filed: 03/11/2010
                                 No. 09-30539

The district court determined that Kates could not proceed under § 2241 because
his claims did not satisfy the requirements of the “savings clause” of 28 U.S.C.
§ 2255(e) and dismissed the § 2241 petition.
      If a prisoner can demonstrate that the § 2255 remedy would be
“‘inadequate or ineffective to test the legality of [the prisoner’s] detention,’” he
may be permitted to bring a habeas corpus claim pursuant to § 2241 under the
“savings clause.” See Reyes-Requena v. United States, 243 F.3d 893, 901 (5th
Cir. 2001) (quoting § 2255). “[T]he savings clause of § 2255 applies to a claim
(i) that is based on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a nonexistent offense
and (ii) that was foreclosed by circuit law at the time when the claim should
have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Id. at
904. Kates has not shown, that he is entitled to proceed under § 2241 based on
the savings clause of § 2255(e).        The judgment of the district court is
AFFIRMED.




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