Cousins v. Chandler, et al

* 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that this opinion should not be published and is not precedent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.
F I L E D
United States Court of Appeals
Fifth Circuit
JUL 19 2002
Charles R. Fulbruge
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40163
Summary Calendar
MARK A. COUSINS,
Petitioner-Appellant,
versus
ERNEST V. CHANDLER, Warden;
UNITED STATES OF AMERICA,
Respondents-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-898
--------------------
Before JOLLY, HIGGINBOTHAM and STEWART, Circuit Judges.
PER CURIAM:*
Mark A. Cousins, federal inmate #43109-019, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition.
Cousins contends that his petition satisfied the criteria
established in Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001), and he was entitled to proceed under the
“savings clause” of 28 U.S.C. § 2255.

-- 1 of 3 --

No. 02-40163
-2-
Specifically, Cousins asserts that he was indicted under 18
U.S.C. § 924(c)(1)(A), which is silent regarding enhanced
sentences for second or subsequent firearms offenses and that he
was convicted and sentenced under 28 U.S.C. § 924(c)(1)(C), which
provides enhanced sentences for second or subsequent offenses.
Cousins argues that the enhanced sentences are elements of the
offenses that were not charged in the indictment and that were
not submitted and proved to the jury.
Cousins has abandoned the issues that he raised in the
district court concerning his 18 U.S.C. § 2113 convictions, the
district court’s jurisdiction, and the jury charge by failing to
assert them in this court. Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993).
We review the dismissal of a 28 U.S.C. § 2241 petition on
the pleadings de novo. Kinder v. Purdy, 222 F.3d 209, 211 (5th
Cir. 2000), cert. denied, 531 U.S. 1132 (2001). The district
court may entertain a 28 U.S.C. § 2241 petition that challenges
custody resulting from a federal sentence if the petitioner
satisfies the requirements of the 28 U.S.C. § 2255 “savings
clause.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.),
cert. denied, 122 S. Ct. 476 (2001). To do so, a petitioner must
show first that his claim is based “on a retroactively applicable
Supreme Court decision which establishes that the petitioner may
have been convicted of a nonexistent offense.” Id. (citation and
quotations omitted). The petitioner thus must show actual

-- 2 of 3 --

No. 02-40163
-3-
innocence, and actual innocence in this sense requires a showing
that the petitioner may have been imprisoned for conduct that did
not constitute a crime. Id. at 830, 831.
Cousins’ argument is based on the current version of 18
U.S.C. § 924(c)(1), although he was convicted in 1993. The 1993
version of the statute did not contain the designated subsections
upon which Cousins’ argument is based.
The true nature of Cousins’ claim is not actual innocence;
he is challenging the propriety of his sentences. Relief on such
claims cannot be sought by way of a 28 U.S.C. § 2241 petition.
See Kinder v. Purdy, 222 F.3d 209, 211 (5th Cir. 2000), cert.
denied, 531 U.S. 1132 (2001). Furthermore, although Cousins
relies on Apprendi v. New Jersey, 530 U.S. 466, 488 (2000), as
support for his position, he cannot show an Apprendi violation.
See United States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001).
Cousins’ 20-years sentences for his second and subsequent
firearms conviction were within the statutory minimum. See 18
U.S.C. § 924(c)(1)(C). The judgment of the district court is
AFFIRMED.

-- 3 of 3 --