Cruz-Fernandez 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60245
Summary Calendar
MIGUEL CRUZ-FERNANDEZ,
Petitioner-Appellant,
versus
KHURSHID Z. YUSUFF,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CV-79-BrS
--------------------
November 7, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Miguel Cruz-Fernandez (Cruz), federal prisoner # 25041-004,
has filed a 28 U.S.C. § 2241 petition challenging his 1992
conviction for possession of cocaine with intent to distribute. He
asserts that because the jury was not required to find the drug
type, quality, or quantity beyond a reasonable doubt and the drug
quality and quantity were not alleged in the indictment, his
conviction and sentence are invalid under Apprendi v. New Jersey,

-- 1 of 2 --

No. 02-60245
-2-
530 U.S. 466 (2000). Apprendi does not apply retroactively to
cases on collateral review, and an Apprendi violation does not
establish that a petitioner was convicted of a nonexistent offense.
Wesson v. U.S. Penitentiary Beaumont, Tex., ___ F.3d ___ (5th Cir.
Sept. 5, 2002, No. 01-41000), 2002 WL 31006173 at *3-*4; Reyes-
Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Cruz
has not established that he is entitled to present his claims under
28 U.S.C. § 2241, and the district court’s judgment is AFFIRMED.

-- 2 of 2 --