Chavez v. United States ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50833
Conference Calendar
ADAN CHAVEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-464-JN
--------------------
December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Adan Chavez, federal prisoner # 51181-079 (“Chavez”) was
convicted in 1991 for conspiracy and possession of marijuana and
cocaine with intent to distribute. He appeals the district
court's dismissal of his 28 U.S.C. § 2241 petition, arguing that
he is entitled to relief under the "savings clause" of 28 U.S.C.
§ 2255. Chavez relies on Apprendi v. New Jersey, 530 U.S. 466
(2000), in support of his argument that his conviction and
sentence are invalid because his indictment did not allege a drug
*
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that this opinion should not be published and is not precedent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. 01-50833
-2-
quantity. He argues that Apprendi is a retroactively available
decision of the Supreme Court.
"[T]he savings clause of § 2255 applies to a claim (i) that
is based on a retroactively applicable Supreme Court decision
which establishes that the petitioner may have been convicted of
a nonexistent offense and (ii) that was foreclosed by circuit law
at the time when the claim should have been raised in the
petitioner's trial, appeal, or first § 2255 motion." Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
This court has recently rejected a petitioner's savings-clause
argument based on Apprendi, holding that the petitioner could
not satisfy the first prong of Reyes-Requena because Apprendi
is not retroactive on collateral review. See Wesson v. U.S.
Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).
Accordingly, the district court's dismissal of Chavez's
petition is AFFIRMED.