Smith v. Tombone

* 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that this opinion should not be published and is not precedent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 11, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41378
Summary Calendar
TERRY ANTHONY SMITH,
Petitioner-Appellant,
versus
TOM TOMBONE,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-34
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Terry Anthony Smith, federal prisoner # 04120-078, appeals the
district court’s dismissal with prejudice of his 28 U.S.C. § 2241
petition. Smith argues that: (1) his guilty plea was involuntary
because he did not receive notice that his sentence would be
enhanced by his prior convictions; and (2) the district court
lacked jurisdiction to enhance his sentence because the indictment
did not allege that he had prior convictions. Smith acknowledges

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No. 02-41378
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that his claim is time barred under 28 U.S.C. § 2255, but seeks to
bring his claims under 28 U.S.C. § 2241.
Unfortunately for Smith, he has failed to identify a
retroactively applicable Supreme Court decision which establishes
that he may have been convicted of a nonexistent offense. His
claims, therefore, do not satisfy the savings clause of 28 U.S.C.
§ 2255, and thus he is not entitled to utilize 28 U.S.C. § 2241.
Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001). This
appeal is without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is therefore
dismissed. 5TH CIR. R. 42.2. Smith’s “Motion for Supplement Plead
to Add Pursuant to FED. R. CIV. PRO. 15(d)” is DENIED.
APPEAL DISMISSED; MOTION DENIED.

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