Cadena v. Adler

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21070
Summary Calendar
UHRICO CADENA,
Petitioner-Appellant,
versus
NEIL ADLER, Warden,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-552
--------------------
Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Uhrico Cadena, federal prisoner # 57712-080, appeals the
district court’s dismissal with prejudice of his 28 U.S.C. § 2241
petition. Cadena argues that his claims fall under the savings
clause of 28 U.S.C. § 2255 because that section is inadequate or
ineffective to test the legality of his imprisonment. He argues
that his sentence violates Apprendi v. New Jersey, 530 U.S. 466
(2000), because no drug amount was proven by the jury and the

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No. 02-21070
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jury did not conclude that he was in a leadership position or
carried a firearm.
Cadena’s inability to meet the requirements for filing a
successive motion under 28 U.S.C. § 2255 does not make the remedy
under that section inadequate and ineffective. Pack v. Yusuff,
218 F.3d 448, 453 (5th Cir. 2000). Further, Apprendi does not
apply retroactively to cases on collateral review, and an
Apprendi claim does not satisfy the test for filing a 28 U.S.C.
§ 2241 petition under the savings clause of 28 U.S.C. § 2255.
See Wesson v. U.S. Penitentiary, Beaumont, Tx., 305 F.3d 343,
347-48 (5th Cir. 2002), petition for cert. filed, (Nov. 29, 2002)
(No. 02-8768). Accordingly, the judgment of the district court
is AFFIRMED. Cadena’s motions for appointment of counsel and for
bail pending his appeal are DENIED.

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