Mejia v. Yusuff

* 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that this opinion should not be published and is not precedent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
August 19, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60947
Conference Calendar
JESUS MEJIA,
Petitioner-Appellant,
versus
KHURSHID Z. YUSUFF,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-331-BrS
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jesus Mejia, a federal prisoner (# 66947-079), appeals the
district court’s dismissal of his petition for a writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2241.
In 1995, the district court for the Northern District of
Florida imposed upon Mejia consecutive prison terms of 210 months
and 60 months for his jury-trial convictions of conspiracy to
possess marijuana with intent to distribute and possession of a
firearm during a drug-trafficking offense. Mejia has argued

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No. 02-60947
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that, although the conspiracy count charged him with conspiring
to violate 21 U.S.C. § 841(b)(1)(A), which applies to marijuana
quantities exceeding 1,000 kilograms, he was in fact convicted
under 21 U.S.C. § 841(b)(1)(B). He has thus contended that he
was “actually innocent” of the conspiracy offense as charged.
The district court did not err in dismissing the petition
for lack of jurisdiction. Mejia acknowledges that a collateral
challenge to a conviction should ordinarily be brought under 28
U.S.C. § 2255. Mejia’s substantive contention does not satisfy
the requirements of 28 U.S.C. § 2255’s “savings clause,” so as to
enable him to proceed instead under 28 U.S.C. § 2241. He has
demonstrated neither that he was convicted of conduct that did
not constitute a crime nor that his claims were foreclosed by
circuit law at the time of his conviction or appeal. See Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001);
Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001).
Mejia’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5TH CIR. R. 42.2.
APPEAL DISMISSED.

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