Scott v. United States ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60196
Conference Calendar
CHARLIE WEST SCOTT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-72-RG
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Charlie West Scott, now federal prisoner #02199-043, appeals
the district court’s dismissal of his 28 U.S.C. § 2241 habeas
corpus petition raising a challenge pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000), to his conviction and sentence for
conspiring to possess with the intent to distribute cocaine base,
possessing with the intent to distribute cocaine base, and
possessing with the intent to distribute cocaine base within
1,000 feet of a school. Scott argues that he is entitled 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that this opinion should not be published and is not precedent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. 02-60196
-2-
raise Apprendi claims in a 28 U.S.C. § 2241 petition, that the
drug quantity should have been alleged in his indictment, and
that the issue of drug quantity should have been submitted to the
jury, who could not have found him responsible for the quantity
of drugs attributed to him at sentencing.
Under the “savings clause” of 28 U.S.C. § 2255, a 28 U.S.C.
§ 2241 petition that attacks custody resulting from a federal
sentence may be entertained only if the petitioner establishes
that the 28 U.S.C. § 2255 remedy is inadequate or ineffective to
test the legality of his detention. See 28 U.S.C. § 2255;
Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000). The
savings clause 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). Because Apprendi is not
retroactively applicable on collateral review, Scott’s Apprendi
claims do not satisfy the requirements of the savings clause and
thus cannot be raised in a 28 U.S.C. § 2241 petition. See Wesson
v. U.S. Penitentiary Beaumont, Tx., 305 F.3d 343, 347 (5th Cir.
2002).
AFFIRMED.