IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40991
Summary Calendar
ALFRED LEE APODACA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA; EARNEST V. CHANDLER, Warden,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-427
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October 26, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Alfred Lee Apodaca, federal prisoner #03359-091, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus
petition. Apodaca asserts that, pursuant to the “savings clause”
of 28 U.S.C. § 2255, he is entitled to assert in a habeas corpus
petition his claim based on Richardson v. United States, 526 U.S.
813, 815-16 (1999). Apodaca contends that he was not found
guilty of every element of his continuing criminal enterprise
offense because the jury was not properly instructed under
*
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that this opinion should not be published and is not precedent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.
No. 00-40991
-2-
Richardson that it was required to unanimously agree on which
specific acts constituted his continuing series of violations.
To trigger the savings clause of 28 U.S.C. § 2255, a habeas
petitioner’s claim: (1) must be “based on a retroactively
applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense” and
(2) must have been “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). Because
Apodaca’s arguments do not amount to a claim that he was
convicted for conduct that did not constitute a crime, he has
failed to satisfy the first prong of the savings clause test.
See Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir. 2001),
petition for cert. filed, (U.S. Aug. 27, 2001) (No. 01-6026).
The district court’s judgment dismissing Apodaca’s habeas corpus
petition is AFFIRMED.