Levi v. Chandler ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40640
Summary Calendar
RICKY EDWARD LEVI,
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
(1:02-CV-129)
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September 30, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Ricky Edward Levi, federal prisoner
number 60807-080, appeals from the district court's denial of his
28 U.S.C. § 2241 habeas petition, in which he sought to challenge
his convictions for (1) conspiracy to possess with intent to
distribute and to distribute cocaine, and (2) money laundering.
Levi's petition followed an unsuccessful 28 U.S.C. § 2255 motion
and the denial of a request to file a successive 28 U.S.C. § 2255
*
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that this opinion should not be published and is not precedent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.
motion. The district court concluded that Levi's petition was not
authorized under 28 U.S.C. § 2255's "savings clause."
Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Levi
argues that he is entitled to relief because (1) his indictment did
not allege drug quantity as a material element of the offense, and
(2) the district court did not instruct the jury to find a drug
quantity. He asserts that the testimony of one witness linking him
to specific drug quantities lacked credibility and was perjurious.
To trigger the savings clause of 28 U.S.C. § 2255, a habeas
petitioner's claim (1) must be "based on a retroactively applicable
Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense" and (2) must have
been "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). Regardless of the retroactivity of Apprendi, Levi is
not entitled to relief under 28 U.S.C. § 2241 because the record
reflects that he was part of a conspiracy involving a sufficient
quantity to support a conviction and sentence under 21 U.S.C. §
841(b)(1)(A). See United States v. Cotton, 122 S. Ct. 1781,
1785-86 (2002).
Citing a Sixth Circuit case, Levi argues that the threshold of
21 U.S.C. § 841(b)(1)(A) was not triggered because his presentence
report indicated that he distributed less than 50 grams on several
occasions and that the amounts should not have been aggregated. In
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addition to being raised for the first time on appeal, which bars
consideration of this argument, see Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999), Levi's contention is not
based on a retroactive Supreme Court decision that was unavailable
when he filed his direct appeal or his first 28 U.S.C. § 2255
motion. Reyes-Requena, 243 F.3d at 904. Therefore, relief under
28 U.S.C. § 2241 is not available.
Finally, Levi argues, again for the first time on appeal, that
he was actually innocent of the money laundering offense because
(1) the district court erred in its jury charge, (2) defense
counsel was ineffective for failing to investigate the facts
concerning the offense, and (3) the government withheld material
favorable to the defense in violation of Brady v. Maryland, 373
U.S. 83 (1963). As noted above, we do not review new legal claims
raised for the first time on appeal.
AFFIRMED.
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