Smith v. Tombone ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41050
Conference Calendar
MELVIN DEWAYNE SMITH,
Petitioner-Appellant,
versus
JOHN M. TOMBONE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-262
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Melvin DeWayne Smith, federal prisoner # 66584-079, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 petition.
Smith pleaded guilty to one count of engaging in a continuing
criminal enterprise (CCE) to possess with intent to distribute
controlled substances. Smith has filed a motion to supplement
his brief and has requested that the court issue a new briefing
schedule. Smith’s motions are DENIED.
*
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that this opinion should not be published and is not precedent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. 01-41050
-2-
For the first time on appeal, Smith argues that his 10-year
supervised-release term violates Apprendi v. New Jersey, 530 U.S.
466 (2000), and that his two-level sentencing enhancement for
firearm possession violates Richardson v. United States, 526 U.S.
813 (1999), and Apprendi. These newly-raised legal claims are
not reviewable for the first time on appeal. See Leverette
v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Smith argues that the indictment in his case failed to
charge a drug quantity in violation of Apprendi and that the
“savings clause” of 28 U.S.C. § 2255 applies to allow him to
pursue 28 U.S.C. § 2241 relief. Smith also seeks to supplement
his argument that the indictment failed to charge the underlying
CCE conduct in violation of Richardson.
Apprendi does not apply retroactively to cases on collateral
review. Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343,
347-48 (5th Cir. 2002). Accordingly, Smith cannot make a showing
sufficient to invoke the “savings clause” of 28 U.S.C. § 2255
to pursue 28 U.S.C. § 2241 relief. Id. Similarly, Smith’s
Richardson claims fail as the Richardson decision had no effect
on whether the facts in Smith’s case would support his conviction
for a substantive offense. See Wesson, 305 F.3d at 347-48. The
judgment of the district court is AFFIRMED.