Marks v. Reese

* 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this opinion should not be published and is not precedent except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
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41224
Conference Calendar
RUSSELL MARKS,
Petitioner-Appellant,
versus
CONSTANCE REESE, Warden
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CV-355
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Russell Marks (“Marks”), federal prisoner # 06550-045,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition in which he challenged his convictions and sentences for
conspiracy to distribute cocaine and conspiracy to launder
monetary instruments. Marks argues that his guilty plea was
involuntary because the trial court did not advise him that he
faced a mandatory sentence of life imprisonment. He contends
that he should be allowed to proceed under 28 U.S.C. § 2241

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No. 04-41224
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because “he has not had an unobstructed shot at getting his
conviction or sentence vacated.” Marks cites to Dretke v. Haley,
541 U.S. 386 (2004) and United States v. White, 371 F. Supp. 2d
378 (W.D.N.Y. 2005) in support of his argument.
Marks has not shown that his claim meets the requirements of
28 U.S.C. § 2255's “savings clause.” He has not shown that his
claim is based on a retroactively applicable Supreme Court
decision which establishes that he may have been convicted of a
nonexistent offense and that such claim was foreclosed by circuit
law at the time when the claim should have been raised in his
trial, appeal, or first 28 U.S.C. § 2255 motion. See Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Therefore, the district court’s dismissal of Marks’s 28 U.S.C.
§ 2241 petition is AFFIRMED.

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