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205 F. App'x 191

Traylor v. United States

U.S. Courts of Appeals

Decided September 18, 2003

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U.S. Courts of Appeals · decided 2003-09-18

Applies 28 U.S.C. § 2241 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2255 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Apprendi v. New Jersey · Reyes-Requena v. United States · Pack v. Yusuff

Decided 2003-09-18

PER CURIAM: 1

¶1 Melvin Traylor, federal prisoner #29612-077, appeals the district court’s denial of his petition invoking 28 U.S.C. § 2241. Because Traylor’s 28 U.S.C. § 2241 petition challenged the legality of his sentence, Traylor had to show that 28 U.S.C. § 2255 provided him with an inadequate or ineffective remedy. Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.2000). “[T]he savings clause of [28 U.S.C.] § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which established that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first [28 U.S.C.] § 2255 motion.” Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.2001).

¶2 Traylor argues that his sentence for his drug-conspiracy conviction is invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Contrary to Traylor’s assertion, Apprendi is not retroactively applicable to cases on collateral review. See United States v. Brown, 305 F.3d 304, 310 (5th Cir.2002), cert. denied, 538 U.S. 1007, 123 S.Ct. 1919, 155 L.Ed.2d 840 (2003). Even if it were, it does not establish that Traylor was convicted of a nonexistent offense. Reyes-Requena, 243 F.3d at 904. Accordingly, Traylor fails to qualify for relief under 28 U.S.C. § 2255’s savings clause provisions. The district court’s dismissal of Traylor’s 28 U.S.C. § 2241 petition is therefore AFFIRMED.

1

¶3 . Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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