Lai v. Chandler ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40659
Summary Calendar
DENNIS CHAN LAI,
Petitioner-Appellant,
versus
ERNEST CHANDLER, 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-122
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October 10, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Dennis Chan Lai, federal prisoner # 82124-011, has filed a
petition for habeas relief under 28 U.S.C. § 2241, challenging
his 1988 convictions and sentences for participating in a
continuing criminal enterprise, distributing and possessing with
intent to distribute cocaine, traveling interstate in aid of
racketeering, and possessing illegal weapons. Because Lai is
proceeding under 28 U.S.C. § 2241, he does not need a certificate
*
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that this opinion should not be published and is not precedent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. 02-40659
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of appealability. Jeffers v. Chandler, 253 F.3d 827, 830 (5th
Cir.), cert. denied, 122 S. Ct. 476 (2001).
In order to challenge his conviction under 28 U.S.C. § 2241,
Lai must show that 28 U.S.C. § 2255 provides him with an
inadequate or ineffective remedy. Pack v. Yusuff, 218 F.3d 448,
452 (5th Cir. 2000). Lai asserts that Apprendi v. New Jersey,
530 U.S. 466 (2000), should be applied retroactively to his case
because the failure to allege drug quantities in the indictment
constitutes a jurisdictional error. Apprendi does not apply
retroactively to cases on collateral review. Wesson v. United
States Penitentiary, Beaumont, Tex., ___ F.3d ___ (5th Cir. Sept.
5, 2002, No. 01-41000), 2002 WL 31006173 at *3. Moreover, a
violation of the rule set forth in Apprendi does not show that
Lai was convicted of nonexistent offense. Id. at 4; Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Lai asserts that he is actually innocent of the continuing
criminal enterprise because the district court did not instruct
the jury that they must unanimously agree on the three predicate
offenses. This claim does not satisfy the first prong of the
Reyes-Requena test. Jeffers, 253 F.3d at 830.
Lai asserts that he is entitled to proceed based on “newly
recognized Federal right[s]” set forth in various Supreme Court
cases and in amendments to the Federal Rules of Evidence. None
of these establishes that the conduct undertaken by Lai no longer
constitutes a federal offense. See Reyes-Requena, 243 F.3d
No. 02-40659
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at 904. The district court’s denial of relief on Lai’s 28 U.S.C.
§ 2241 petition is AFFIRMED.