Jackson v. Chandler ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41511
Conference Calendar
TOMMY MERREL JACKSON,
Petitioner-Appellant,
versus
EARNEST CHANDLER, 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-574
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tommy Merrel Jackson, federal prisoner No. 27477-077,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
petition challenging his conviction and life sentence for
conspiracy to possess with intent to distribute methamphetamine.
Jackson argued in his § 2241 petition that his sentence
violates Apprendi v. New Jersey, 530 U.S. 466 (2000) because the
district court did not instruct the jury that it was required to
*
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that this opinion should not be published and is not precedent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. 01-41511
-2-
make a finding as to drug quantity; thus, he contended that there
was no finding beyond a reasonable doubt that he was guilty of
conduct involving the quantity of drugs on which his sentence is
based. Jackson further argued that the “savings clause” of 28
U.S.C. § 2255 authorized him to bring his Apprendi claim in a
§ 2241 petition.
To proceed under the savings clause of 28 U.S.C. § 2255,
Jackson must show that (1) his claim is based on a retroactively
applicable Supreme Court decision which establishes that he may
have been convicted of a nonexistent offense, and (2) his claim
was foreclosed by circuit law at the time when the claim should
have been raised in his trial, appeal, or first 28 U.S.C. § 2255
motion. See Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001).
We recently decided that an Apprendi claim does not satisfy
the savings clause test set forth in Reyes-Requena. See Wesson
v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir.
2002). Specifically, we held that Apprendi does not apply
retroactively to cases on collateral review and that an Apprendi
violation does not show that a petitioner was convicted of a
nonexistent offense. Id. Accordingly, the district court’s
dismissal of Jackson’s 28 U.S.C. § 2241 petition is AFFIRMED.