eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2002-05

Gonzales v. Miles ( 2002 )


Menu:
 
  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51063
Summary Calendar
JOHNNY M. GONZALES,
Petitioner-Appellant,
versus
R. D. MILES, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CV-282-JN
--------------------
April 30, 2002
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Johnny M. Gonzales, federal prisoner # 53504-080, appeals
the district court’s dismissal of his
    28 U.S.C. § 2241
     petition.
The district court found that Gonzales had not satisfied the
requirements of the “savings clause” of
    28 U.S.C. § 2255
    , which
would allow him to raise his claims in a
    28 U.S.C. § 2241
    petition.
Under the savings clause, if the petitioner can show that
    28 U.S.C. § 2255
     provides him with an inadequate or ineffective
remedy, he may proceed by way of
    28 U.S.C. § 2241
    .     Pack v.
*
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that this opinion should not be published and is not precedent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. 01-51063
-2-
Yusuff,
    218 F.3d 448
    , 451 (5th Cir. 2000).   A petitioner must
show that 1) his claims are based on a retroactively applicable
Supreme Court decision that establishes that the petitioner may
have been convicted of a nonexistent offense, and 2) his claims
were foreclosed by circuit law at the time when the claims should
have been raised in his trial, appeal, or first
    28 U.S.C. § 2255
    motion.   Reyes-Requena v. United States,
    243 F.3d 893
    , 904 (5th
Cir. 2001).   The burden of coming forward with evidence to show
the inadequacy of a
    28 U.S.C. § 2255
     motion “rests squarely on
the petitioner.”   Jeffers v. Chandler,
    253 F.3d 827
    , 830 (5th
Cir. 2001)
On appeal, Gonzales argues that his sentence was based on a
drug quantity described in the pre-sentence report rather than
the quantity alleged in the indictment; that his sentence was
improperly enhanced for his role in the offense because the
district court considered testimony given outside Gonzales’s
presence; counsel provided ineffective assistance by depriving
him of the opportunity to testify and by not challenging the
failure of the indictment to allege a drug quantity; and the
court erred by imposing a $50,000 fine.
Liberally construed, several of these claims are based on
Apprendi v. New Jersey,
    530 U.S. 466
     (2000).   See Haines v.
Kerner,
    404 U.S. 519
    , 520 (1972).   However, Gonzales’s concurrent
240-month imprisonment terms for conspiracy and possession of
cocaine with intent to distribute do not violate Apprendi because
they do not exceed the 20-year maximum of
    21 U.S.C. § 841
    (b)(1)(C), which sets forth the baseline penalty range for
No. 01-51063
-3-
cocaine.   See United States v. Clinton,
    256 F.3d 311
    , 314 (5th
Cir.), cert. denied,
    122 S. Ct. 492
     (2001) (holding that sentence
enhanced within a baseline statutory range based upon a finding
of drug quantity does not violate Apprendi).     His 60-month
sentence for possession of marijuana does not exceed the 60-month
statutory maximum under
    21 U.S.C. § 841
    (b)(1)(D), the baseline
penalty range for marijuana.    In addition, the $50,000 fine was
well within the $1,000,000 statutory maximum of
    21 U.S.C. § 841
    (b)(1)(C).
Gonzales’s other claims, including that his sentence was
improperly enhanced for his role in the offense, that counsel
deprived him of the opportunity to testify, and that the court
erred in calculating the fine amount, all relate to his
conviction and sentence, and Gonzales has not satisfied the
savings clause by showing that these claims are based on a
retroactively applicable Supreme Court decision which establishes
that he may have been convicted of a nonexistent offense.       See
Reyes-Requena,
    243 F.3d at 904
    .    The appropriate vehicle to
address these types of claims is a
    28 U.S.C. § 2255
     motion, not a
    28 U.S.C. § 2241
     petition.     See
    id. at 901
    .
Gonzales has not shown why
    28 U.S.C. § 2255
     is an inadequate
or ineffective remedy with respect to these issues and has not
addressed the requirements of the savings clause.    Accordingly,
the dismissal of his
    28 U.S.C. § 2241
     petition is AFFIRMED.      His
motion for appointment of counsel is DENIED.