Cullum v. Dobre ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41023
Summary Calendar
LARRY J. CULLUM,
Petitioner-Appellant,
versus
JONATHON DOBRE, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-338
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December 16, 2002
Before JONES, STEWART, and DENNIS, Circuit Judge
PER CURIAM:*
Larry J. Cullum (Cullum), federal prisoner # 48858-080,
appeals the district court’s dismissal of his 28 U.S.C. § 2241
habeas corpus petition challenging his jury-trial conviction for
conspiracy to distribute methamphetamine, manufacturing
phenylacetone, and filing false tax returns. In his petition, he
averred that he is actually innocent of the offense of conviction
and that the prosecutor manufactured and falsified evidence in an
*
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that this opinion should not be published and is not precedent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. 02-41023
-2-
effort to obtain his conviction. Cullum, relying on Apprendi v.
New Jersey, 530 U.S. 466 (2000), also contended that the
indictment was defective because it failed to allege a drug
amount and the jury instructions were defective because they did
not require the jury to determine the quantity of drugs. Lastly,
he averred that his sentence was so excessive as to constitute
cruel and unusual punishment.
Cullum has not established that he is entitled to present
his claims under 28 U.S.C. § 2241 because he has not demonstrated
that any of his 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 v. United
States, 243 F.3d 893, 904 (5th Cir. 2001); Wesson v. U.S.
Penitentiary Beaumont, Tex., ___ F.3d ___ (5th Cir. Sept. 5,
2002, No. 01-41000), 2002 WL 31006173 at **3-4. The district
court’s judgment is AFFIRMED.