Cargill v. Morrison , 73 F. App'x 695 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 03-40254
Conference Calendar
MANLEY CARGILL,
Petitioner-Appellant,
versus
MARVIN D. MORRISON,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-794
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Manley Cargill, federal prisoner # 41436-004, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition, in
which he challenged his convictions for a continuing criminal
enterprise and drug conspiracies pursuant to Rutledge v. United
States, 517 U.S. 292 (1996). Cargill cannot establish that he
meets the standard for filing a 28 U.S.C. § 2241 petition under
the “savings clause” of 28 U.S.C. § 2255 because Rutledge was
available at the time Cargill filed his first 28 U.S.C. § 2255*
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that this opinion should not be published and is not precedent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. 03-40254
-2-
motion. See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001). Cargill is incorrect in his assertion that
Rutledge was unavailable at the time he filed his first 28 U.S.C.
§ 2255 motion because such a claim would have been untimely. See
28 U.S.C. § 2255 ¶ 6; United States v. Flores, 135 F.3d 1000,
1005-06 (5th Cir. 1998). The “savings clause” does not violate
the Suspension Clause of the Constitution. Reyes-Requena, 243
F.3d at 901 n.19. Consequently, the judgment of the district
court is AFFIRMED.