Ball v. Conner , 83 F. App'x 621 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-40383
Conference Calendar
GAYLON DON BALL,
Petitioner-Appellant,
versus
N. L. CONNER, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:00-CV-293
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Gaylon Don Ball, federal prisoner #17290-009, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition in
which he challenged his convictions for conspiracy to manufacture
amphetamine and attempting to manufacture amphetamine. Ball
argues that he is entitled to relief under Apprendi v. New
Jersey, 530 U.S. 466 (2000), and that his counsel was ineffective
for failure to object to his lengthy sentence. Ball further
*
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that this opinion should not be published and is not precedent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. 03-40383
-2-
argues that the “rule of lenity” should have been applied to
determine the appropriate sentencing range.
This court has held that Apprendi does not apply
retroactively to cases on collateral review and that an Apprendi
claim does not satisfy the requirements for filing a 28 U.S.C.
§ 2241 petition under the “savings clause” of 28 U.S.C. § 2255.
See Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347-
48 (5th Cir. 2002), cert. denied, 123 S. Ct. 1374 (2003); United
States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002).
Additionally, Ball’s claim of ineffective assistance of counsel
fails to satisfy the requirements of the savings clause. The
claim is not based on a retroactively applicable Supreme Court
decision which establishes Ball’s innocence. Furthermore, the
claim could have been raised on direct appeal or in Ball’s first
§ 2255 motion. See Reyes-Requena v. United States, 243 F.3d 893,
904 (5th Cir. 2001). Ball’s “rule of lenity” argument is raised
for the first time on appeal and consequently is unreviewable.
See United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).
Based on the foregoing, the district court’s dismissal of
Ball’s 28 U.S.C. § 2241 petition is AFFIRMED.