IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41434
Conference Calendar
GLENN METZ,
Petitioner-Appellant,
versus
ERNEST V. CHANDLER, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-145
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Glenn Metz, federal prisoner # 28118-034, appeals from the
denial of his 28 U.S.C. § 2241 petition. He argues that the
district court erred in determining that his Apprendi v. New
Jersey, 530 U.S. 466 (2000) claim did not meet the criteria for
bringing a claim pursuant to the “savings clause” of 28 U.S.C.
§ 2255.
*
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that this opinion should not be published and is not precedent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. 01-41434
-2-
“[T]he savings clause of § 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 § 2255 motion.”
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
Metz argues that his claim falls under the “savings clause”
because he was convicted pursuant to unconstitutional statutes.
We have, however, rejected the argument that 21 U.S.C. §§ 841(a)
and (b) are facially unconstitutional in light of Apprendi.
United States v. Fort, 248 F.3d 475, 482 (5th Cir.), cert.
denied, 122 S. Ct. 405 (2001). Furthermore, Metz’s argument that
the statutory provisions have been unconstitutionally applied in
his case is conclusional, and he does not allege that he was
sentenced beyond the statutory maximum; therefore, he has not
demonstrated an unconstitutional application. See United States
v. Slaughter, 238 F.3d 580, 581 (5th Cir. 2000) (drug statute is
unconstitutionally applied where drug quantity was neither
specified in the indictment nor found by the jury beyond a
reasonable doubt and where the sentence exceeded the statutory
maximum), cert. denied, 532 U.S. 1045 (2001). We pretermit the
issue whether Apprendi is retroactively applicable on collateral
No. 01-41434
-3-
review, because Metz has not shown that he is entitled to
Apprendi relief.
Metz has failed to meet the first prong of the Reyes-Requena
analysis. He therefore has not shown that the district court
erred in dismissing his petition.
AFFIRMED.