Martinez v. Chandler

* 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that this opinion should not be published and is not precedent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. 00-41109
Conference Calendar
OSCAR MARTINEZ,
Petitioner-Appellant,
versus
EARNEST V. CHANDLER, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-541
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Oscar Martinez, federal prisoner # 43662-080, was convicted
of aiding and abetting the distribution of in excess of 100
kilograms of marihuana. He appeals the district court’s
dismissal of his 28 U.S.C. § 2241 petition, arguing that he
qualifies for relief under the savings clause of 28 U.S.C.
§ 2255. He asserts that his sentence is invalid under Apprendi
v. New Jersey, 530 U.S. 466 (2002), and argues for the first time

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No. 00-41109
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on appeal that his inability to proceed under 28 U.S.C. § 2255
violates the Suspension Clause.
This court has recently held that Apprendi does not apply
retroactively to cases on collateral review and that an Apprendi
claim does not satisfy the requirements for filing a 28 U.S.C.
§ 2241 petition under the savings clause. See Wesson v. U.S.
Penitentiary, Beaumont, TX, 305 F.3d 343, 347-48 (5th Cir. 2002).
Martinez’s Suspension Clause argument was not raised below and is
without merit. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999); Turner v. Johnson, 177 F.3d 390, 392
(5th Cir. 1999).
Accordingly, the district court's dismissal of Martinez’s
petition is AFFIRMED.

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