                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-40191
                        Conference Calendar


DAVID EDWARD POSIVAL,

                                    Petitioner-Appellant,

versus

WARDEN JOE D. DRIVER,

                                    Respondent-Appellee.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 2:05-CV-256
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     David Edward Posival, federal prisoner # 34233-079, appeals

from the denial of his 28 U.S.C. § 2241 petition, in which he

challenged his conviction for being a felon in possession of a

firearm.   The district court determined that Posival’s claims

would be properly raised in a 28 U.S.C. § 2255 motion but that

construing the petition under § 2255 would render it successive

and unauthorized.   The district court also held that Posival

could not proceed under § 2255’s savings clause.



     *
       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this opinion should not be published and is not precedent except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. 06-40191
                               -2-

     Posival argues that the evidence was insufficient for a

sentencing enhancement based on a stolen firearm and that he

should be allowed to proceed under § 2255’s savings clause based

on United States v. Booker, 543 U.S. 220 (2005), and Blakely v.

Washington, 542 U.S. 296 (2004).   He also asserts that Booker and

Blakely constitute an intervening change in the law, that his

trial and appellate counsel rendered ineffective assistance, and

that he is actually innocent.   The district court properly

determined that Posival’s claims should be raised in a § 2255

motion and that such a motion would now be successive.   See

Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000); United

States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000).

Posival’s argument that he should be permitted to proceed under

the savings clause is unavailing in light of this court’s

decision in Padilla v. United States, 416 F.3d 424, 426-27 (5th

Cir. 2005).

     AFFIRMED.
